An I-212 waiver application is not a visa application — instead, it is an application for permission to apply for a visa after you have been deported (removed). This means that even if your I-212 application is approved, your visa application could still be turned down. You must apply for an I-212 waiver from abroad — you cannot apply while in the US.

Applying for an I-212 waiver is the beginning of what could be a long and complex process to re-entering the US. Nevertheless, many people (most of them with the help of experienced immigration lawyers) have successfully navigated the system Some of these have gone on to obtain permanent residence and even US citizenship.

Background

Aliens who seek to work as a minister or a religious worker can, if they qualify, may work in the United States for up to five (5) years. Previously, the USCIS has not subtracted the time the minister/religious worker spent outside of the US after his/her initial admission to the US-based on the R-1 visa when the petitioner files for an extension.

The reasons behind the new guidance policy

Some immigrants are not permitted to file a new petition (such as an R1 petition) until they have lived outside of the US for a certain length of time. USCIS policy, prior to this memo, did provide guidance (permit) H-1B and L-1 nonimmigrant foreign nationals (and their dependents) to recapture the time they spent outside of America when calculating the time they could stay in America.

Recapture is aimed at allowing a qualifying nonimmigrant to spend the most time in the US that his/her classification allows – before the requirement to leave the country for a set time begins – in order to file the subsequent petition.

USCIS has decided that this recapture policy should apply to the R-1 nonimmigrant classification. USCIS has also decided that R-1 dependents (spouse and children)) can use recapture for their R-2 stays.

Recapture is Consistent with R-1 Statute and Regulations.

The Immigration and Nationality Act (INA) Section 101(a)(15)(R) provides that religious workers can obtain R-1 status for an initial time of 30 months from the time of admission (lawful entry into the United States). The 30-month time frame can be extended provided that total time doesn’t exceed 5 years. The INA also requires that once the 5-year period is over, the alien must reside abroad/outside of the US before he/she can reapply. USCIS now decides that only “time actually spent in the United States in R-1 status is to be counted towards the maximum 5 years of authorized stay.”

Recapture is Consistent with the Purpose and Intent of the R-1 Classification

The USCIS recognizes that, after admission into the US, the R-1 nonimmigrant may need to leave America during the approved stay period for “personal or professional” reasons. Additionally, “It is not always the case that the petitioning organization will cease to need the religious worker at exactly the same date as the expiration of the period of stay that was initially requested on the petition.” Thus, it should benefit both the religious organization that files the petition and R-1 beneficiary if “the petitioner is able to request that the alien beneficiary’s stay be extended to ‘recapture’ any time the alien spent outside of the United States during the approved period of stay.

Field Guidance

The memo directs that USCIS officers who decide R-1 nonimmigrant petitions are directed to comply with the guidance set forth in this memo – that time spent outside America during the R-1 validity period will NOT count towards the 5-year maximum stay period – provided the alien is otherwise still eligible and provides “independent documentary evidence establishing that he or she was in fact physically outside of the United States during the day(s) for which the alien is seeking recapture.”

AFM Update

The memo directs that the Adjudicator’s Field Manual be revised so that Chapter 34.5(m) of the AFM is read as follows:

“(m) Limitation on total stay. An alien who has spent 5 years in the United States in R-1 nonimmigrant status may not be readmitted to or receive an extension of stay in the United States under the R nonimmigrant classification unless the alien has resided abroad and has been physically present outside the United States for the immediate prior year, except for an R-1 nonimmigrant who”

“(1) Is Eligible to Recapture Time Spent Outside the United States During the R-1 Validity Period.” The details of this new directive state in precise language the R-1 recapture policy as set forth above.

The AFM Update continues by explaining that the petitioner has the burden of proof and details the type of evidence required to prove the R-1 beneficiary was outside the US – such as:

  • “A summary and/or charts of travel are often submitted to facilitate review of the accompanying documentation
  • Independent documentary evidence (e.g., photocopies of passport stamps,
  • I-94 Arrival/Departure cards and/or plane tickets)”
  • Other relevant evidence

Contact an experienced immigration lawyer to discuss the R1 length of stay requirements.

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