The first thing many who have been deported from the United States asks is “when may I return.” In most cases , the alien may not return to the United States after s/he has been ordered removed for a period of 10 years, but like many laws there are “exceptions.” The Immigration and Nationality Act provides that an alien may return to the United States, notwithstanding the bar on re-entry, if the Attorney general has consented to the alien’s reapplying for admission. The application for re-entry is filed either in the United States or at the oversees consulate who has the authority to grant the “I-212 waiver.”
This 212 "waiver" is for an inadmissible immigrant or non-immigrant that is seeking permission to reapply for admission into the United States (also known as “consent to reapply”) after they have been excluded, deported, or removed from the United States or had been unlawfully present in the United States for an aggregate period of more than 1 year, and subsequently entered or attempted to reenter the United States without being admitted.
Aliens who have been deported from the United States are typically barred for a period of time. The period during which the deportee is barred can be either 5, 10 or 20 years depending on the circumstances of and reasons for the deportation. See below. In order to be readmitted during the period s/he is barred, a I-212 Waiver for Reapplication for Admission must be filed.
In many cases, the I-212 Waiver is filed along with an I-601 waiver application (for those that remained in the United States illegally for a period of greater than six months). Or for example, someone who has been ordered removed from the United States after an Immigration Judge has made a finding of fraud under INA § 212(a)(6)(C)(i), which imposes a bar to entering the U.S., will require an I-212 waiver application and either an I-601 waiver application ( for an immigrant visa) or an I-192 waiver application (for a nonimmigrant visa). The I-212 application, once granted, would waive the prior removal. The I-601 or I-192 application, if approved, would waive the fraud grounds of inadmissibility.
Depending on the case, this application must be made either at the same consulate which will be issuing the visa or at the U.S. Citizenship and Immigration Services office having jurisdiction over the place of the original deportation.
Form I-212 is therefore submitted together with the appropriate supporting documentation and filing fee.
Individuals who may benefit from this waiver include:
Understand that if a person leaves on time as ordered by the immigration judge, pursuant to an order of voluntary departure, s/he does not need to apply for permission to reapply for admission.
An alien who receives an I-212 waiver (permission to reapply) and re-enters legally cannot later be deported/removed again for the same acts that were the basis of the individual’s previous deportation/removal.
Requirements for an I-212 waiver:
There are no requirements such as a qualifying family member. Applications are considered on a case-by-case basis, and all relevant factors that you can produce will be considered.
Previous cases has greeted a litany of items that the immigration service should consider in determining whether an I-212 should be granted.These include, but are not limited to:
(1) The basis for deportation
(2) Recency of deportation
(3) Length of residence in the U.S.
(4) Moral character of the applicant
(5) His respect for law and order
(6) Evidence of reformation and rehabilitation
(7) Family responsibilities of applicant
(8) Inadmissibility to the U.S. under other sections of law
(9) Hardship involved to himself and others
(10) The need for his services in the U.S.
Congressional intent behind I-212 waivers was to give a previously deported alien a second chance. An I-212 waiver is a form of remedial relief rather than a punitive provision or statute.
The Application Procedure:
Immigrant visa applicants who also require Form I-601, files Forms I-212 and I-601 concurrently with the U.S. Department of State at the immigrant visa interview at the U.S. Consulate with jurisdiction over the applicant's place of residence. In other words at the consulate. The consular officer must then forward the waiver application forms to the appropriate USCIS officer with jurisdiction over the area within which the consul is located.
Immigrant visa applicants who do not require Form I-601, file Form I-212 with the USCIS field office having jurisdiction over the place where removal proceedings were held (In the United States). The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.
Applicants for Adjustment of Status file Form I-212 with the USCIS office having jurisdiction over the adjustment application, which is the same office to adjudicate the application.
Visa-exempt applicants/Canadians file Form I-212 with CBP at a U.S. Port of Entry (“POE”) or other designated pre-clearance office, who will then forward the application to the ARO for adjudication.
Nonimmigrants are required to submit Form I-212 to the U.S Consulate with jurisdiction over the alien's place of residence. The consular officer must forward recommendation for consent to reapply for admission and visa issuance to the CBP Admissibility Review Office ("ARO") for a decision.
Specific time periods which bar re-admission:
• Aliens ordered removed in an expedited removal proceeding
• Aliens removed through removal proceedings initiated upon the alien’s arrival in the
• Aliens otherwise ordered removed after a removal hearing before an Immigration
• Aliens who departed the U.S. while an order of removal was outstanding
• Aliens ordered removed more than once