October 10, 2016
By: Joseph G. Cella, Esq.
With the “Expanded Provisional Waiver Program”, and it’s authorization to Apply for I212 Waiver after a Removal/Deportation/Exclusion Order from within the United States prior to filing an
I-601A “Application for Provisional Wavier” or a waiver of the unlawful presence bar,
Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provides that foreign nationals who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:
- 5 years for individuals removed through summary exclusion or through removal proceedings initiated upon the person’s arrival in the U.S.;
- 10 years for those otherwise ordered removed after a deportation hearing or who departed the United States while an order of removal was outstanding; and
- 20 years for a second or subsequent removal.
- Note on aggravated felony: If you were convicted of an aggravated felony, you are inadmissible forever and must obtain a I-212 waiver even if you were not removed because of the aggravated felony conviction or were convicted of the aggravated felony after being removed from the United States
- Foreign nationals with illegal reentry or attempted reentry after having been unlawfully present for more than one year, or who have been ordered removed are permanently inadmissible. They must also file the I-212 waiver for permission to reapply for admission but may only do so if 10 years have passed since their last departure from the United States.
The I-212 waiver allows foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. to file an application for permission to reapply pursuant to INA Section 212(a)(A)((iii). The USCIS exercises broad discretion when adjudicating I-212 waiver requests.
Positive factors may include:
- Basis for the deportation;
- Recency of deportation;
- Foreign national’s length of residence in the U.S., and status held during that presence;
- Family responsibilities and ties to the U.S.;
- Foreign national’s evidence of good moral character;
- Foreign national’s respect for law and order;
- Evidence of reformation and rehabilitation;
- Hardship involving the applicant and others;
- Need for the applicant’s services in the U.S.;
- Whether the applicant has an approved immigrant or non-immigrant visa petition;
- Eligibility for a waiver of other inadmissibility grounds;
- Absence of significant undesirable or negative factors;
Negative factors may include:
- Evidence of moral depravity, including criminal tendencies reflected by ongoing unlawful activity or continuing police record;
- Repeated violations of immigration laws, willful disregard of other laws;
- Likelihood of becoming a public charge;
- Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor);
- Absence of close family ties or hardships;
- Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit;
- Unauthorized employment in the United States;
- Lack of skill for which labor certification could be issued;
- Serious violation of immigration laws, which evidence a callous attitude without evidence of reformation of character; and
- Existence of other grounds of inadmissibility into the U.S.
Generally, the I-212 Consent to Reapply for Admission is granted if the foreign national is the beneficiary of an approved family or employment-based petition, has been deported only once before, does not have a criminal record, did not commit significant immigration violations, and can demonstrate hardship to his or her family or employer if not allowed to return.
How the I-212 Fits in with the Expanded Provisional Waiver (I-601A)
Effective August 29, 2016, The Department of Homeland Security (DHS) amended its regulations to expand eligibility for the provisional unlawful presence waivers of the three and ten-year unlawful presence bars to all aliens who are statutorily eligible for such a waiver. Among other changes is the provision which allows some people who have been ordered removed (or deported or excluded) but did not depart the United States to apply for provisional waivers, as long as the applicant:
- Is the beneficiary of an approved eligible immigrant petition;
- Has s/he already obtained an approved Application for Permission to Reapply for Admission into the United States After Deportation or Removal (Form I-212); and
- His or her removal order has not been reinstated. (If the order is reinstateable, but the government has not acted to reinstate, provisional waivers are possible.)
In sum, when an alien is present in the United States unlawfully; has a removal/deportation/exclusion order; is the beneficiary of an immigrant petition (I-130 or I-140); and has a qualifying relative for an I-601A Provisional Waiver, (USC or LPR parent or spouse), he or she can now file an I-212 Application to Reapply for Admission Into the United States After Deportation Order while in the United States. Once it and an I-130 or I-140 Petition are approved and a visa is available, he or she can file an I-601 A Provision Unlawful Presence Waiver, also from within the United States, without having to file a Motion to Reopen Removal/Deportation Proceedings. This change constitutes a very significant benefit for those who have such an order but do not have a reasonable basis by which to reopen proceedings.
The author, Joseph G. Cella, Esq.,
Has been practicing immigration law for 23 years. He is the founder of Cella & Associates, llc, – US Immigration Attorneys.
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