By Joseph G. Cella, Esq.
This guide specifically applies to those aliens who returned to their home country, either voluntarily or under an order of deportation, after already having entered and spent time in the United States on at least one prior occasion. The specific issue under consideration is whether these aliens may lawfully return to the United States.
Prior Deportation Order(s) And The I-212 Waiver.
INA 212(a)(9)(A): Certain Aliens Previously Removed. Persons who have been ordered removed: a. Through expedited removal or through removal proceedings initiated at the time of the person’s arrival in U.S. after April 1, 1997, and who seek admission within 5 years (or 20 years if second or subsequent removal, or at any time if convicted of an aggravated felony) are inadmissible, unless prior permission has been granted. b. After a deportation or removal hearing from the US or who departed while an order of removal was outstanding, and who seek admission within 10 years (or within 20 years if it is after a second or subsequent removal order, or at any time if person convicted of an aggravated felony) from the date of such physical deportation or removal are inadmissible, unless the AG has given consent for readmission. c. The Permanent Bar – applies to aliens that were convicted of an aggravated felony, entered without permission after being removed, or reentered the US after having previously been in the US unlawfully for more than one year. An alien with a permanent bar may seek consent to reapply for admission after having been outside the US for 10 years. c. NOTE: INA 212(a)(9)(A) only applies if the person has physically departed the US or been physically removed subsequent to the issuance of an order. This would mean that those aliens that departed (1) through the relief of Voluntary Departure or (2) after being caught by CBP at the border and being permitted to withdraw their application for admission and return to their country of origin w/o an order of deportation, do not have to apply for permission to re-enter using the I-212 Waiver.
I-212 Waiver For Reapplication For Admission.
A person who is barred from admission under INA 212(a)(9)(A) may apply for readmission prior to the period of inadmissibility by seeking an I-212 Waiver. Previous case law has named several factors the Service should consider in determining whether an I-212 Waiver should be granted. For example, in Matter of Lee, 17 I&N Dec. 275 (Comm. 1978), criteria were established in determining whether an I-212 Waiver should be granted, which include, but are not limited to: (1) Recency of deportation (2) Length of residence in the U.S. (3) Moral character of the applicant (4) His respect for law and order (5) Evidence of reformation and rehabilitation (6) Family responsibilities of applicant (7) Inadmissibility to the U.S. under other sections of law (8) Hardship involved to himself and others (9) The need for his services in the U.S. (10) The basis for deportation.
NOTE: In Absentia Orders.
An I-212 waiver is not available to waive a final order of removal for 5 years for a person who has been removed due to inadmissibility/deportability because of an in absentia order.
Persons Unlawfully Present In The United States And The I-601 Waiver.
Section 212(a)(9)(B)(i) of the INA subjects aliens to either a three-year or ten-year bar to admission, depending on the period of unlawful presence in the United States. A. Three (3) Year Bar. Specifically, Section 212(a)(9)(B)(i)(I) bars non-citizens who have been unlawfully present in the United States for more than 180 consecutive days and who voluntarily depart prior to commencement of proceedings from reentering the United States for three years B. Ten (10) Year Bar. Section 212(a)(9)(B)(i)(II) prohibits the admission for 10 years of any non-citizen who has been unlawfully present for a year or more consecutively and who has left or been removed from the United States. Unlike the 3-year bar, the 10-year bar applies even if the alien leaves after removal proceedings have commenced. C. I-601 Waiver. If the person is an immigrant and the spouse or son or daughter of a USC or LPR (but not the parent) and he or she can show “extreme hardship” to the spouse or parent (but not his or her child), inadmissibility can be waived using Form I-601. D. Accrual of Unlawful Presence. Section 212(a)(9)(B)(ii) of the Act specifies that “unlawful presence” can accrue during any period under which an alien, other than an LPR, is present in the US without being admitted or paroled, or after the expiration of the period of stay authorized by the Secretary of Homeland Security. As previously mentioned, different rules apply when considering this in the framework of the 3 and 10-year unlawful presence bars. III. The Special Case Of Voluntary Departure. If you were granted an order of VD from an Immigration Judge and left during the time period specified, you do not have to file an I-212 Waiver in order to re-seek admission to the United States. On the other hand, if prior to accepting VD, you have accrued “unlawful presence” you would still be inadmissible for the requisite period of time and thus need an I-601 Waiver.
Analysis and Conclusion.
A. In General. Generally speaking, once an alien is deported, the United States will bar him from returning on an immigrant visa for 5 years, 10 years, 20 years, or permanently. The length of time affecting the alien depends on the circumstances surrounding his deportation. Like many immigration laws, however, there is an exception. The INA provides that an alien may return to the United States, notwithstanding the bar on re-entry, if the AG has consented to the alien’s reapplying for admission. The application for re-entry is Form I-212. Surprisingly, even the alien facing a permanent bar can apply for permission to re-enter using Form I-212, but only after having waited outside the US for 10 years. Furthermore, if the alien is deported for certain reasons, such as for being unlawfully present in the United States or for committing a crime, the I-212 Waiver will not be enough to get him back into the United States. In this case, you must submit BOTH an I-212 Waiver and an I-601 Waiver to a US Embassy or Consulate, and you must also show that being denied entry would cause “extreme hardship” to a qualifying relative. The I-212 Waiver is less substantial since it does not require either a showing of extreme hardship or a qualifying relative, as is required by the I-601. Simply put, the I-212 Waiver forgives the prior removal. The I-601, on the other hand, may also be needed to forgive the reason for the alien’s removal, such as unlawful presence or a finding of fraud. An exception exists for those that departed pursuant to an order of VD. These aliens do not need to submit an I-212 Waiver (i.e. to seek permission to re-enter based on forgiveness of prior deportation order), but may have to submit an I-601 Waiver depending on the reason for their deportation. Finally, with regard to the accrual of unlawful presence in conjunction with both a “voluntary” departure and the three and ten-year bars, different rules apply. With the 3-year bar, an alien who accrues at least 180 days but less than one year of unlawful physical presence in the U.S., and who voluntarily departs after commencement of removal proceedings, does not trigger the 3-year unlawful presence bar. On the other hand, an alien who voluntarily departs after having been unlawfully present in the U.S. for more than one year is subject to the ten year bar, regardless of whether removal proceedings have already commenced.
(1) I-212 Only Procedure
Immigrants who only require form I-212 will file Form I-212 with the USCIS field office having jurisdiction over the place where removal proceedings were held (in the US). The same field office retains jurisdiction to adjudicate the Form I-212 Waiver Application.
I-212 and I-601 Procedure
Immigrants who require both an I-212 and an I-601, file Forms I-212 and I-601 concurrently with the US Department of State at the immigrant visa interview at the US Consulate with jurisdiction over the applicant’s place of residence (i.e. at the consulate). The consular office must then forward the waiver application forms to the appropriate USCIS officer with jurisdiction over the area within which the consul is located.