INA 212(a) Inadmissibility & Waivers

Foreign nationals may travel to the U.S. pursuant to a nonimmigrant visa, immigrant visa, or the visa-waiver program. While living in the U.S., some nonimmigrants may begin the transition to permanent residency by adjusting status. When physically outside the U.S., a foreign national may obtain permanent resident status by receiving an immigrant visa issued by a diplomatic post. Permanent residents may decide to pursue citizenship through naturalization. Whether applying for a visa, an extension of stay, change of status, adjusting status, or naturalization, inadmissibility can delay or prohibit a foreign national from traveling to America or obtaining the requested benefit.

INA § 212 (8 U.S.C. § 1182) provides the inadmissibility categories prohibiting a foreign national from receiving an immigration benefit. These categories include the following activities or reasons:

  • health-related grounds,
  • criminal history,
  • threats to U.S. security,
  • public charge,
  • those who intend to work in the U.S. without proper labor certification,
  • entering the U.S. without proper admission or parole and violating immigration laws,
  • insufficient travel documentation,
  • ineligibility for U.S. citizenship,
  • a previous removal/deportation order or unlawful presence, and
  • reasons such as traveling to the U.S. to practice polygamy, entering the U.S. as a helpless person’s guardian, committing child abduction by violating a U.S. custody order, voting unlawfully in the U.S., and renouncing U.S. citizenship to avoid paying American taxes.  

When applying for a benefit, a visa, or requesting admission at a border checkpoint, the U.S. Government requires that the immigration officer identify the regulation prohibiting the officer from granting the requested benefit. A denial notice should explain the reason for the denied benefit, visa, or admission.

For some inadmissibility bars, the journey does not end once USCIS, consular staff, or Customs and Border Protection denies the benefit or admission. Rather, foreign nationals may apply for a waiver. American law does not authorize a waiver from all inadmissibility grounds. A few examples of waivers include the following:

  • Nonimmigrant Applicant:  If recommended by a consular officer, foreign nationals may apply for a 212(d)(3) waiver after a consulate denies a nonimmigrant visa. Similarly, a foreign national may apply for a waiver when denied admission after obtaining a nonimmigrant visa. An approved waiver will authorize temporary admission into the U.S. 
  • Humanitarian or Significant Public Benefit Parole: Even when ineligible for a visa and denied a waiver, a foreign national may apply for humanitarian parole if extremely serious circumstances arise. INA § 212(d)(5)(A) also allows an application for significant public benefit parole.   
  • Provisional Unlawful Presence Waivers: When unlawful presence (3 or 10 year bar) applies to a foreign national, the provisional unlawful presence waiver may provide relief. USCIS must approve an immigrant visa petition or invite the foreign national to participate in the diversity visa program before applying for this waiver. This waiver becomes necessary when a foreign national will apply for an immigrant visa at a U.S. consulate.
  • 2-Year Foreign Residency Requirement:  A J-1 exchange visitor, who must depart America for 2 years may request a waiver from the foreign residence requirement based upon (1) exceptional hardship to a spouse or child, who is a U.S. citizen or permanent resident or (2) inability to return to her nation due to fear of persecution. Additionally, a J-1 medical graduate may apply for a waiver from the foreign residence requirement when a public health department supports a waiver.