I-212 Waiver: Application for Permission to Reapply for Admission into the United States After Deportation or Removal

Aliens found inadmissible to the United States based on sections 212(a)(9)(A) or 212(a)(9)(C) of the Immigration and Nationality Act (INA) must file USCIS Form I-212 Application for Permission to Reapply for Admission After Deportation or Removal. Form I-212 is a waiver request that allows such aliens to seek consent from the United States government to apply for lawful re-admission to the United States after having been deported or removed. You may not return to the United States until your I-212 application has been filed with the Department of Homeland Security and is subsequently approved. Failure to do so may result in your permanent inadmissibility from the United States.

The I-212 waiver is only one of many waivers that can provide relief for immigration violations under U.S. immigration law, however, only individuals who have been found inadmissible under sections 212(a)(9)(A) or 212(a)(9)(C) of the Immigration and Nationality Act (INA) may apply for the I-212 waiver. The alien must file the I-212 waiver from outside of the United States and remain abroad for a continuous period of time. If you are inadmissible under another section of the law, you must apply for a different waiver type.

Aliens who have been deported/removed from the United States have committed an immigration violation and are thus inadmissible and barred from seeking a United States visa (immigrant or non-immigrant) for a specified period of time. The period of time an alien is deemed inadmissible or ‘barred’ from seeking re-entry depends on the reason for the alien’s removal, circumstances surrounding their removal, and period of unlawful presence. Individuals may be barred from seeking admission to the United States for five, ten, twenty years, or indefinitely. This means that as a result of the immigration violation committed, the alien is required to remain abroad for a continuous period of time as required by the bar before seeking re-admission. Multiple immigration violations constitute multiple bars therefore it is important to fully disclose all crimes, misrepresentations, or fraud claims in the alien’s immigration history. If you do not know the provision of law that was the basis of your exclusion, deportation, or removal from the United States, review the official documents you received during your removal proceedings. These documents should specify under what section of the law you have been found inadmissible. The I-212 waiver allows certain aliens to seek permission to re-apply for admission to the United States before their period of inadmissibility has been reached (otherwise known as a ‘bar’).

Aliens who enter or attempt to re-enter the United States unlawfully after having been previously ordered removed from the United States or after having accrued more than one year of unlawful presence in the United States, will become permanently inadmissible under section 212(a)(9)(C) of the Immigration and Nationality Act. Individuals who fall under this category will be required to wait until at least 10 years have passed from their date of removal or last departure before filing the I-212 request, even if the alien possesses a qualifying relative. Exceptions exist for aliens who entered the United States prior to April 1, 1997. Such aliens are protected by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which stipulates that aliens who re-entered the United States prior to April 1, 1997 following their removal are not subject to the permanent bar. Additionally, aliens who have accrued unlawful presence prior to April 1, 1997 are immune from the permanent bar. For information about the current I-212 filing fee and direct filing addresses please visit the USCIS webpage for additional instructions and eligibility.

The number of years you are found inadmissible following your deportation/removal from the United States depends on the period of unlawful presence you have accrued and the circumstances surrounding your removal. The following removal scenarios may help you determine the inadmissibility period you are facing:

• Five-Year Bar: If you were removed upon arrival to the U.S. (expedited removal) or were placed in proceedings upon arrival and then ordered removed by immigration judge, you are subject to the five-year bar on reentry, from the date of your removal (single offense);
• Ten-Year Bar: If you entered the U.S. and were later placed in removal proceedings, or if you left the U.S. willingly but before removal proceedings were concluded, you are subject to the ten-year bar on reentry, from the date of your removal (single offense);
• Twenty-Year Bar: If you have been removed from the U.S. on more than one occasion, you are subject to the 20-year bar on reentry, from the date of removal (multiple offense);
• Permanent Bar: If you were convicted of an aggravated felony, you are permanently inadmissible and forever barred from reapplying for a visa without filing Form I-212. If you are permanently barred under Section 212(a)(9)(C) of the Immigration and Nationality Act (I.N.A.), because you aggregated one year's unlawful stay in the U.S. and left, or you were ordered removed from the U.S, and then you attempted to reenter illegally, you must wait ten years before filing Form I-212 even if you are married to a United States citizen or have citizen children.

If you are unsure of which period of inadmissibility applies to you, it is best for you to seek professional guidance.

What does it mean for unlawful presence to be counted in the aggregate?

An individual’s period of unlawful presence is counted in the aggregate when an alien has entered the United States multiple times and has accrued one year of unlawful presence during those multiple stays, thus resulting in a permanent bar.

Multiple Immigration Violations:

The first scenario is usually similar to this: the alien had been previously deported from the U.S. and then entered or attempted to enter the U.S. illegally. Then the alien marries a U.S. citizen during their stay. The U.S. citizen comes to our office to inquire about the immigration process for the non-citizen spouse and to determine whether there are any issues associated with the alien spouse’s prior immigration violations. There are several issues here. The alien has committed multiple immigration violations, in this case both the 212(a)(9(A) and (C). Since the alien re-entered the United States illegally following their removal, the alien is now subject to the permanent bar which requires the alien to wait at least10 years from the date of their departure or removal from the United States to be eligible to apply for the I-212 waiver. If the alien had filed a I-212 waiver before entering the United States following their deportation or removal, the 10 year rule would not apply, but the alien would still need to depart the United States to obtain an immigrant visa through a US consulate abroad.

Another common situation: an alien has been unlawfully present in the U.S. for more than 1 year, then departs the U.S. for frivolous or personal reasons, and enters or attempts to enter the U.S. illegally. Then that alien marries a U.S. citizen and tries to lawfully immigrate into the U.S.. The same situation applies, unless the alien re-entered or accrued the unlawful presence before April 1, 1997, in which case the alien would not be subject to the permanent bar according to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

Section 212(a)(9)(A) is a section of the Immigration and Nationality Act (INA) applicable to certain aliens seeking admission to the United States following their exclusion, removal, or deportation from the United States. The purpose of the I-212 request is to allow an alien previously removed, to be re-admitted to the United States before the alien’s corresponding period of inadmissibility (bar) has passed. Such aliens must seek re-admission to the United States from abroad. If the alien remained outside of the United States during the entire period of inadmissibility required by the bar, filing of the I-212 is no longer necessary.

Special Provision: Aliens inadmissible under section 212(a)(9)(A) who have an outstanding order of removal, and have not yet departed the United States, may file Form I-212 before departing the United States, if they plan to apply for an immigrant visa abroad. This privilege is only available to aliens found inadmissible under section 212(a)(9)(A). The decision to approve such a request is discretionary. Once approved, consent to reapply is conditional upon the alien’s departure from the United States.

Section 212(a)(9)(A) of the Immigration and Nationality Act renders the following aliens inadmissible:

(9)(A) Certain aliens previously removed. -

(i) Arriving aliens. -Any alien who has been ordered removed under section 235(b)(1) or at the end of proceedings under section 240 initiated upon the alien's arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) …

(ii) Other aliens. -Any alien not described in clause (i) who-

(I) has been ordered removed under section 240 or any other provision of law, or

(II) departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure or removal (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) …

You may file Form I-212 from abroad before seeking admission to the United States if you are an:

1. Alien who was either a) removed from the United States or b) departed the United States with an outstanding order of removal, and are now seeking re-admission to the United States from abroad, before your required period of inadmissibility has been reached;
2. Alien seeking either an immigrant visa, adjustment of status under INA section 245, or admission as a nonimmigrant through a US Consulate or designated US port of entry;
3. Alien convicted of an aggravated felony seeking either re-admission to the United States or adjustment of status to permanent residence;

You may obtain consent to apply for admission to the United States having demonstrated that you have remained outside of the United States for a continuous period of time, depending on the reason for your removal:

• 5 years from the date of departure or removal, if the alien was removed only once;
• 10 years from the date of departure or removal, if the alien was removed only once;
• 20 years from the date of departure or removal in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony;

Section 212(a)(9)(C) is a section of the Immigration and Nationality Act (INA) applicable to certain aliens who have been found inadmissible based on their unlawful presence and subsequent immigration violations. If you have been found inadmissible under this section of the law, you will remain permanently inadmissible and will be required to apply for consent to reapply for admission every time you seek admission to the United States. To apply, you must depart the United States and remain outside of the country for at least 10 years from the date of your last departure. This 10-year bar is required regardless of whether you have an immediate relative who is a United States citizen. Once 10 years have passed since your date of last departure you may file Form I-212 to seek consent to reapply for admission to the United States.

Section 212(a)(9)(C) of the INA applies to:

• Aliens who have been unlawfully present in the United States for an aggregate period of more than 1 year;
• Aliens who have been ordered removed under INA 235(b)(1) or 240, or other provisions of the law applying to aliens entering or attempting to reenter the United States;

If you have been found inadmissible under section 212(a)(9)(C), you cannot file Form I-212 if you are in the United States at the time of filing OR if you have not been physically outside of the United States for more than 10 years since your date of last departure. Exceptions to the I-212 filing requirement may apply for VAWA (Violence Against Women Act) self-petitioner’s.

Section 212(a)(9)(C) states in part:

(ii) Exception. -Clause (i) shall not apply to an alien seeking admission more than 10 years after the date of the alien's last departure from the United States if, prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of Homeland Security has consented to the alien's reapplying for admission.

(iii)WAIVER- The Secretary of Homeland Security may waive the application of clause (i) in the case of an alien who is a VAWA self-petitioner if there is a connection between--

(I) the alien's battering or subjection to extreme cruelty; and

(II) the alien's removal, departure from the United States, reentry or reentries into the United States; or attempted reentry into the United States.

You must file Form I-212 from abroad before seeking admission to the United States if you are an:

1. Alien found inadmissible under section 212(a)(9)(C) seeking to apply for an immigrant visa;
2. Alien seeking a nonimmigrant visa type through a US port of entry or US consulate;
3. Alien who on or after April 1, 1997 entered or attempted to re-enter the United States without being admitted or paroled after:
   1. Having been unlawfully present in the United States after April 1, 1997, for a total period of more than one year (INA section 212(a)(9)(C)(i)(I)); or
   2. Having been ordered removed from the United States under any provision of the INA or any other provision of law before, on, or after April 1, 1997.

You may be subject to criminal prosecution and, if convicted, sentenced to prison under INA section 276, if you:

1. Have been denied admission to the United States;
2. Were excluded, deported, or removed from the United States; or
3. Have departed the United States while an order of exclusion, deportation, or removal is outstanding;

AND then you:

1. Enter or attempt to enter the United States; or
2. Are found in the United States unlawfully (including without consent to reapply for admission)

If you are required to obtain consent to reapply for admission and you return to the United States without formal consent, you may face legal consequences. Possession of a visa does not entitle you to receive admission to the United States if your I-212 has not been approved. If the filing period for you to submit Form, I-212 has now expired you may still be criminally liable for failure to file the waiver if you return to the United States unlawfully.

The following is a list of some supporting documents that should be included in the I-212 waiver request. The list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case.

The list includes but is not limited to the following items:

1. Deportation/Removal Proceedings

Attach copies of all correspondence and documentation that you have relating to your deportation or removal proceedings and your removal from the United States (if applicable).

2. Immediate Relatives

If you listed any relative in Part 3. Item Numbers 3.a. and 3.d., you must submit evidence of your relationship to that person. If your relative is a U.S. citizen, you must submit proof of U.S. citizenship.

If he or she is not a U.S. citizen, you must provide the following:

1. Your relative’s full name;
2. Date of birth;
3. Place of birth;
4. Place of admission to, or entry into, the United States;
5. Current immigration status;
6. Immigration status at the time of entry; and
7. Alien Number, if known.

3. Inadmissible under INA section 212(a)(9)(C)

If you are inadmissible under INA section 212(a)(9)(C), submit evidence of:

1. Your removal from the United States;
2. The date you entered or attempted to reenter the United States without being admitted or paroled;
3. The date of your last departure from the United States; and
4. Evidence of your absence from the United States for 10 years since your last departure.

Also submit evidence that relates to your departure and your absence from the United States for at least 10 consecutive years. Such evidence may include any of the following:

1. Copies of entry/exit stamps from foreign countries in your passport;
2. Receipts for, or copies of, airplane tickets;
3. Registration of your residence abroad;
4. Utility bills in your name at the foreign address;
5. Employment records from your foreign job; and
6. Any other information that you believe will establish your departure and absences from the United States.

4. Additional Documents for Alien’s Seeking Admission to the United States Through CBP at a U.S. Port-of-Entry.

In addition to the evidence listed above, you must submit the following documents:

1. Proof of Citizenship
2. A completed Form G-325A, Biographic Information, signed and dated by you
3. Evidence of Other Names Used (if applicable)
   If you have ever used a name other than your full legal name as provided on the application, you must list any names ever used, including your maiden name (if applicable). You should file evidence of legal name changes, such as copies of marriage certificates, divorce decrees, adoption decrees, and naturalization certificates with your application.
4. D. Criminal Records
   Each application should contain your official police record, or evidence that no police record exists, from all countries of prior residence and from your country of citizenship or nationality.

These records are valid for 15 months from the date the foreign law enforcement authority issued you the record. If your records are older than 15 months, you will need to obtain a new official record and submit it with your Form I-212.

NOTE for Canadian Filers: You can obtain the above information from the Royal Canadian Mounted Police (RCMP) by submitting your fingerprints on Form C-216C. The returned Civil Product and any accompanying records must be dated and endorsed by the RCMP and submitted with your Form I-212 within 15 months of issuance.

E. Notarized affidavit explaining why your application should be considered for approval including a detailed testament of your favorable attributes, good moral character, family ties to the United States, hardships your immediate relatives will face, etc. and how these factors outweigh the negative aspects of your case. Your affidavit should supplement the supporting evidence you have provided with your application.

5. Additional Evidence to Support Your Application

Approval of your Form I-212 is discretionary. This means the adjudicator will weigh the favorable and unfavorable factors presented in your case to determine whether to approve your application. To receive a favorable outcome, submit as much evidence as possible to explain why you believe that your application should be approved. You should describe the favorable and unfavorable factors in your case and explain why you think the favorable factors should be given more weight. For additional ideas to enhance your statement please visit our I-601 waiver page subsection ‘supporting documents.’

Favorable factors may include, but are not limited to:

1. Close family ties in the United States;
2. Hardship to your relatives who are U.S. citizens or lawful permanent residents, or to yourself, or your employer in the United States;
3. Evidence of reformation and rehabilitation;
4. Length of lawful presence in the United States and your immigration status while you were lawfully present;
5. Evidence of respect for law and order, good moral character, and family responsibilities or intent to hold family responsibilities;
6. Absence of significant undesirable or negative factors;
7. Eligibility for a waiver of other inadmissibility grounds; and
8. Likelihood that you will become a lawful permanent resident in the near future.

Some unfavorable factors may include, but are not limited to:

1. Evidence of bad moral character, including criminal tendencies reflected by past convictions or an ongoing unlawful activity or continuing police record;
2. Repeated violations of U.S. immigration laws and a willful disregard for other laws;
3. Likelihood of becoming public charge
4. Absence of close family ties or hardships;
5. Fraudulent marriage to a U.S. citizen for the purpose of gaining an immigration benefit;
6. Unauthorized employment in the United States;
7. Lack of the skills required for a position for which a labor certification could be issued; and
8. Serious violations of U.S. immigration laws and no evidence of rehabilitation or reformation.

Evidence submitted in support of your application may include:

1. Affidavits from you or other individuals;
   All claims made in affidavits should be supported by evidence or you should explain in detail why you cannot obtain such evidence.
2. Evidence of family ties in the United States
3. Police reports from countries where you lived; D. Complete court records regarding any arrests, charges, or convictions from any country;
4. Evidence of rehabilitation, if applicable;
5. Evidence that your admission to the United States would not be against national security or public safety;
6. Medical reports;
7. Employment records;
8. Evidence of hardship to you, your relatives, or other individuals that would result if you were denied admission to the United States;
9. Documentation related to the impact of family separation;
10. Documentation of the conditions in the country where your family would have to relocate if your Form I-212 was denied; and
11. Any other evidence that can establish why you should be granted permission or consent to reapply for admission to the United States.

Unlawful presence and previous immigration violations are complex issues that require careful analysis by an accredited immigration attorney who can navigate the law avoiding unnecessary family separation where possible. If you or your family members wish to immigrate to the U.S. but are concerned about previous immigration violations, contact our office for an in depth consultation.