The 212(d)(3) is a waiver under the Immigration and Nationality Act (INA) that allows foreign nationals to overcome many grounds of inadmissibility. This waiver is often used to overcome inadmissibility issues, such as the 3 or 10 year bar for unlawful presence, overstaying a previous visa, criminal conduct, or previous fraud, among others. The waiver must be submitted from a US Consulate abroad.

The 212(d)(3) waiver is granted at the discretion of the Department of Homeland Security. The department’s discretion is based mainly upon these four factors:

1. Whether there is a risk of harm to society if the foreign national is allowed into the US,
2. The seriousness of the foreign national’s criminal or immigration violation (or other grounds of inadmissibility)
3. The reason for the foreign national coming into the US.
4. The foreign national’s bar from entering the US would result in an extreme hardship to his/her US Citizen or Lawful Permanent Resident parent, spouse, and/or child.

* Note: See definitions for foreign national, extreme hardship, and grounds of inadmissibility for more information.