By Michael Phulwani, Esq. and Dev B. Viswanath, Esq.
If an individual was previously removed or deported from the United States based on sections 212(a)(9)(A),(9)(B), or 212(a)(9)(C) of the Immigration and Nationality Act (INA) they may be allowed to re-enter the U.S. by filing Form I-212, Application for Permission to Reapply for Admission After Deportation or Removal. Form I-212 is a waiver request which allows foreign individuals to ask permission from the U.S. government to apply for lawful re-admission to the U.S. after they have been deported or removed. An individual is not allowed to return to the U.S. until the I-212 application is filed and approved. While the application is being processed the individual must remain outside of the U.S. except for limited circumstances.
Individual’s who had been deported or removed have committed an immigration violation and therefore not allowed to re-enter the U.S. for a specific period of time. The period of inadmissibility depends on the reason for the individual’s removal, circumstances surrounding their removal, and the amount of time they were present in the U.S. unlawfully. Individual’s may be barred from re-entering the U.S. for five, ten, twenty years, or indefinitely. The I-212 waiver allows certain foreign individuals to ask permission to re-apply for admission to the U.S. before their period of inadmissibility has been reached. It can also be requested in conjunction with a waiver on form I-601 for inadmissibility.
Foreign individual’s, who are permanently inadmissible under section 212(a)(9)(C) of the INA must wait until at least 10 years have passed from their date of removal or departure before filing the I-212 request. One exception for this rule is for foreign individual’s, who entered the U.S. before April 1, 1997 because they are protected by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under IIRIRA foreign individual’s, who re-entered the U.S. before April 1, 1997 after their removal are not subject to the permanent bar. Foreign individual’s, who have accrued unlawful presence before April 1, 1997 are also exempt from the permanent bar.
Individual’s who are inadmissible under 212(a)(9)(A) or (9)(B) of the INA who have an outstanding order of removal and are still in the U.S., are allowed to file the I-212 Form before leaving the U.S. as long as they plan to apply for an immigrant visa abroad. USCIS has a discretionary right to approve or deny the application and once approved, permission to reapply for admission is conditional upon the individual’s departure from the U.S. The Applicant must show hardship to a qualifying relative or employer.
When submitting the I-212 waiver request, supporting documents should be included. Examples of some supporting documents are:
• Copies of all the documents relating to the individual’s deportation or removal proceedings; and
• Evidence of the individual’s relationship to any immediate relatives. If the relative is a U.S. citizen, then proof of citizenship is required; and
• Statement describing the favorable and unfavorable factors of the individual’s case and why the favorable factors outweigh the unfavorable factors.