Nonimmigrant Waiver Immediately Following Voluntary Departure

QUESTION: I overstayed my B1/B2 visa for 3 years.  I am now in removal proceedings and will seek voluntary departure.  If I apply for an H1B visa while in the U.S., and if it is approved before my voluntary departure, can I go to the Consulate in my country and apply for a waiver at my H1B interview?  Is it possible to apply for both a nonimmigrant waiver and H1B right after voluntarily departing the U.S.?  Or do I have to wait for the 10-year bar to expire before I can apply for it? Please enlighten me.  Thank you. 

REPLY:  In short, yes, you can apply for a nonimmigrant visa and waiver at any time following your departure from the U.S. (provided you have an approved H-1B visa petition).  In reality, however, we do not usually recommend applying for a nonimmigrant waiver so soon after the immigration law violation for which you require the waiver.  

This does not mean that there are not some cases in which we would not recommend moving forward so soon after your departure.  Nonimmigrant waivers pursuant to INA § 212(d)(3) are adjudicated based upon a balancing of the following three (3) factors: 

(1)     The risks of harm in admitting the applicant;

(2)     The seriousness of the acts that caused the inadmissibility; and

(3)     The importance of the applicant’s reasons for seeking entry. 

See Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978). 

Whether or not you have a strong case for a nonimmigrant waiver will depend upon these factors.  In your case, I am especially interested in learning the reasons for your 3-year overstay.  If you would like to submit additional information and receive a complete professional analysis regarding the strength of a potential nonimmigrant waiver application, please consider contacting my office to set up a consultation.