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Nonimmigrant Waivers Can Allow Entry to the United States After Previous Visa Overstay

Posted by Karol Brown | May 15, 2024 | 0 Comments

The nonimmigrant visa waiver can allow a non-U.S. citizen to enter the United States with a visitor visa or temporary work visa, even if they previously overstayed their visa status in the United States. This nonimmigrant visa waiver is also called a Section 212(d)(3)(A) waiver, referring to the section of the Immigration and Nationality Act describing this process. 

Unlawful presence in the United States can make someone inadmissible. Inadmissible means you are not allowed to enter the country. If you have overstayed a visa in the United States, you may have accumulated unlawful presence in the United States. Even one day of unlawful presence may require you to return to your home country to renew your visa stamp in your passport. If you overstay your visa status more than six months or 180 days of unlawful presence and then leave the United States, you may have triggered the three year bar. This rule would prevent you from returning to the United States for three years. If you overstayed your legal status by more than one year and then left the United States, you may not be allowed to return to the United States for 10 years. This is called the ten year bar.

The Nonimmigrant Visa Waiver can grant you permission to enter the United States even if you have been unlawfully present in the past. Below is an easy-to-understand guide about how to apply for this waiver.

Where Can I Apply for a Nonimmigrant Waiver for a previous overstay?

Most people apply for a nonimmigrant visa waiver at a U.S. Embassy or Consulate when applying for a visa stamp. You may also be able to apply for this waiver at a U.S. port of entry, such as an airport or border crossing.

What are acceptable reasons for entering the United States with a nonimmigrant visa waiver?

US Immigration Officials will consider many reasons for granting a waiver. You may explain why you would like to enter the United States. Your reasons for entering the United States may include:

  • Vacation
  • Visiting family
  • Medical treatment
  • Business purposes
  • Attending a conference
  • Employment opportunity
  • Attending school, university or training

What are the standards for granting a Nonimmigrant Waiver to the United States?

US Immigration officials will look at three main factors to decide whether to approve your nonimmigrant visa waiver.

  1. Is there a serious risk of harm if you enter the United States.

  2. The seriousness and history of your unlawful presence.

  3. Your reason for wanting to enter the U.S.

You should provide evidence for each of these three factors. You should be prepared to answer questions about why you would not harm the United States, why you overstayed your visa and how you will not do so again, and your purpose in coming to the United States.

There are no guarantees that your waiver will be approved. You can apply again if you are denied. You may want the assistance of a US immigration attorney like World One Law Group to help you in preparing your materials and your answers to questions.

What is the application process for applying for a nonimmigrant visa waiver?

Below are the main steps to apply for a nonimmigrant visa waiver, after overstaying your previous trip to the United States.

  1. Apply for a Non-Immigrant Visa

    The first step is to apply for a visa to come to the United States at the US embassy. Some may also apply at a US border crossing or airport. The type of nonimmigrant visa you choose depends on your purpose. Most people request a B1/B2 Visitor Visa. But you may also request a TN, H1B, E2, L1, or other work or investor visa. This visa request may be denied if you have overstayed previously.

  2. Apply for the Nonimmigrant Waiver

    If your visa request is denied, you may then apply for the nonimmigrant visa waiver, or 212(d)(3)(A) waiver. The US Embassy or Consular official will generally review your waiver request, and make a decision. Your case is approved when the US Embassy returns your passport with the US visa stamp. When your waiver is approved, you can travel to the United States with your visa stamp in your passport. You will talk to a US Customs and Border Patrol officer when you enter, who will make the final decision to approve your entry to the United States.

How Long is the Validity Period for My Nonimmigrant Visa Waiver?

When your nonimmigrant visa waiver is approved, the waiver usually is approved for the same time as your visa. The period you are allowed to stay in the United States will depend on your reason for entering. B1/B2 visitors may be granted up to 180 days, with an option to extend. Work visa holders in H1B, TN, L1A, L1B, E2, E3, and O1 status may be granted one to three year approvals.

How Do I Know How Long I Can Stay in the United States?

Your passport may have been stamped when you entered the United States, with a date written for your expiration date. This is the date that you have been authorized to enter the United States.

You may also find the expiration date for your visa status online through the US Customs and Border Protection agency. You will need the information in your passport to retrieve a form called the Form I94, which tracks your entry and exits in the United States. Go to the CBP Online Form I94 and selecting the blue button for Get Most Recent I94. After clicking the "I acknowledge and agree" button, you can enter your name, birth date, and passport information into the online form. Click next and the computer will provide a Form that shows your most recent entry to the United States, your visa status, the expiration date for your stay in the United States, and other useful information. Print out this form to include with many immigration applications and petitions.

If you are a client of World One Law Group, we can provide you with copies of these important documents.

Why Do I Need to Know the Expiration Dates for my Stay?

As a temporary visitor to the United States, it is very important that you understand when your visa status expires or ends. You are responsible for leaving the country or filing an extension, change or adjustment of status to maintain valid immigration status in the United States. Most immigration petitions require you to file before that expiration date, with a few exceptions. If you do not file documents to maintain your status or overstay your visa again, this history of immigration violations can have more serious consequences for your future ability to live, work, or travel to the United States. 

World One Law Group can help you keep track of these important dates, and answer your questions throughout your stay if your situation changes.

Does this Nonimmigrant Visa Waiver Work for Permanent Residency Applications? 

The Nonimmigrant Waiver under Section 213(d)(3) is only for nonimmigrants, meaning people who are visiting the United States temporarily. Immigrants, or foreign citizens moving to the United States permanently, are not eligible for this waiver. Immigrant applicants may be eligible for a different waiver, called a Form I-601 waiver, to address previous visa overstays in the United States.

Contact World One Law Group for Help with your American Journey!

The US immigration system can be difficult to navigate, especially on your own. World One Law Group is here to help. You can schedule your consultation online, via email, or by text message. Just go to our online Consultation Request Form and provide as much information as you can.

You can also schedule a personal, professional immigration consultation by calling our office at (425) 250-8110. We have real people answer our telephones 24 hours a day, 7 days a week, in both English and Spanish. You can also email questions to [email protected]

About the Author

Karol Brown

Managing Attorney


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