- Deportation and the I-212 Waiver
- Deportation and Bars to Re-Entry
- The 10-year waiting period in case of a permanent bar
- The Double Bar Problem
- Unwaivable Bars to Re-Entry
- Strategy for Winning an I-212 Waiver
- Supporting Documentation
- How an Immigration Attorney Can Help
- The Law is Constantly Changing
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.
First, the “Bad” News: Deportation and the I-212 Waiver
If you are ordered deported from the US, you will be barred from re-entering the US for a certain period of time. This means that even if you apply for a visa at a US embassy or consulate overseas and your visa application is approved, you will still be barred from re-entering the US because the granting of a visa does not overcome the bar to re-entry.
A possible solution to this dilemma is to request forgiveness of the re-entry bar through the filing for an I-212 application. A successful I-212 application works a lot like a pardon does for a criminal conviction — US immigration authorities agree to lift the bar to re-entry and allow you to apply for a visa to re-enter the US.
Deportation and Bars to Re-Entry
In case you are confused about the terms “deportation” and “removal”, please remember that for practical purposes these two terms are interchangeable — they mean the same thing. Deportation/removal is being “kicked out” of the US and sent to another country, typically your country of origin. If you are deported, you will be subject to a bar to re-entering the US — in other words, you will be put on a blacklist that renders you ineligible to re-enter the US.
Remember that if you request and are granted voluntary departure from an immigration judge as an alternative to deportation, the deportation bars mentioned herein will not apply to you, although you may indeed face additional barriers to re-entering the US.
The bars to re-entry based on deportation order work like this:
- If you were summarily excluded from the US (you arrived at a US airport, for example, were found ineligible for entry, and were sent straight back to your home country by an immigration official with no opportunity to apply for a hearing before an immigation judge, a procedure known as expedited removal), you will be subject to a five-year bar,
- If deportation proceedings against you were instituted immediately upon your arrival in the US and you were subsequently ordered deported, you will be subject to a five-year bar;
- If removal proceedings were instituted against you after you were admitted to the US; and if you were ordered deported after a deportation hearing or you left the US while a deportation order was in effect, you will be subject to a 10-year bar;
- If you are deported twice or multiple times, you will be subject to a 20-year bar, even if you did not attempt to enter the US illegally; if
- If you commit an aggravated felony, you will be subject to a permanent bar (for the rest of your life);
- If you attempt to re-enter the US illegally (whether successfully or not) after accumulating more than one year of unlawful presence after April 1, 1997 and then leaving the US for any reason, you will be subject to a permanent bar;
- If you attempt to re-enter the US illegally after being ordered deported, you will be subject to a permanent bar.
The 10-year waiting period in case of a permanent bar
If you are subject to a permanent bar, you cannot even apply for an I-212 waiver for at least 10 years after you last departure from the US if:
- You have been been unlawfully present in the US for more than one year;
- You have been deported, and you re-enter the US (or attempt to re-enter).
The Double Bar Problem
Being ordered deported will result in a bar from re-entering the US, as described above. Nevertheless, there is a second bar, based on certain conduct that could render you inadmissible to the US, that could result in a separate re-entry bar. You might be able to apply for waiver of this type of bar by filing Form I-601 or Form I-601A (depending on the reason for your inadmissibility)
Receiving an I-601 or I-601A waiver will not operate as an I-212 waiver, however — you will need to have both I-601(A) and I-212 applications approved to be eligible to even apply for a visa to enter the US. This is because the I-212 waiver is designed to remove bars based on deportation, while the I-601(a) waivers were designed to remove bars based on the conduct that led to the deportation in the first place.
The foregoing explanation of the double-bar problem is necessarily oversimplified. If you have a double bar problem, you are certainly going to need an experienced immigration lawyer.
Unwaivable Bars to Re-Entry
In some cases, unfortunately, you may find yourself in a circumstance where you will not be able to return to the US during your period of inadmissibility, even by filing Form I-212, Form I-601 or Form I-601. Below is a list of some of these circumstances:
- Not showing up at your deportation hearing;
- Claiming to be a US citizen (if you are not one);
- Seeking to re-enter the US within 10 years of a first deportation or within 20 years of a second deportation;
- Conviction of an aggravated felony;
- Submitting a frivolous application for asylum;
- Renouncing your US citizenship for tax avoidance purposes.
Other unwaivable bars may apply as well.
Now the Good News: Strategy for Winning an I-212 Waiver
The I-212 waiver is discretionary, meaning that US immigration authorities are not obligated to give you one no matter how persuasive your application is. Obviously, however, the more persuasive your application is, the better your chances are for receiving a waiver.
Some of the most important factors that the officer will take into account include:
- The amount of time that has passed since you were deported (the longer the better)
- Whether you have committed any criminal acts, either inside or outside the US.
- If your re-entry bar is based on a criminal act, whether there is evidence of rehabilitation.
- How long you have resided in the US and how much of that time was in legal status.
- Whether you have close family members residing in the U.S.
- Whether you have family responsibilities in the US.
- Whether the denial of your application will cause undue hardship to your US citizen or permanent resident relatives, your employer or yourself. The degree of hardship must be more than the usual degree of hardship that occurs when someone gets deported and is not allowed to return.
- If you have valuable professional or vocational skills, the degree of need for these skills in the US.
- Whether you have demonstrated good moral character, whether inside or outside the US.
- Whether allowing you to re-enter the US would harm the safety or welfare of the nation.
- Whether you are inadmissible for reasons other than the reasons that an I-212 waiver could cure (in other words, whether you would be inadmissible even if your I-212 waiver was granted — see the “double bar” problem above).
- Whether you will be eligible for permanent residence soon after an I-212 waiver is granted.
- Your economic status, especially if you appear to be in poverty and likely to rely on public assistance to survive (this is an independent ground of inadmissibility, by the way).
- Whether you worked illegally while in the US.
Your chances of winning an I-212 waiver are best if you back up everything you say with documentary evidence. Not all documentary evidence is created equal, however. A photocopy of a birth certificate, for example, is not nearly as useful as a certified copy issued by a government agency. Likewise, a support letter from your associate that makes general statements is not nearly as useful as a notarized affidavit stating specific, verifiable facts under penalty of perjury.
Following is a very incomplete list of examples of some of the evidence that you may need to provide:
- Proof that you would be eligible (or would likely be eligible) for a US visa if your -212 application were approved;
- Notarized affidavits from credible witnesses, attesting to your good moral character, or too unusual hardships that you, your family or your employer may face if you are not readmitted, and other positive and specific statements about you;
- Evidence of family members residing in the U.S., such as certified copies of birth and marriage certificates;
- Medical records, psychological evaluations, etc. if they are relevant to your case;
- Evidence of the financial impact of separation from your family in the US;
- Police clearance reports showing that you have committed no crimes, or at least that you have committed no crimes for a significant enough length of time to provide evidence of rehabilitation;
- Other evidence of rehabilitation if you have ever been convicted of a crime either inside or outside the US,
- Employment records;
- Professional qualifications (a professional license, for example);
- Tax returns;
- Media reports on the conditions of the country where you and your family would have to live life if your I-212 waiver application were denied.
Other documents are likely to be required, depending on your individual circumstances.
How an Immigration Attorney Can Help?
Retaining an experienced, skilled and diligent immigration lawyer can greatly improve your chances of receiving an I-212 waiver in a smooth and timely manner, by:
- Determining whether seeking an I-212 waiver is your best course of action under the circumstances of your particular case, and determining whether you are eligible for such a waiver.
- Determining whether obtaining an I-212 waiver will benefit you even if you receive it. In some cases an I-212 waiver is of no avail. You might be subject to an unwaivable bar to re-entry,for example, or you might be better off filing Form I-601 or Form I-601A instead.
- Determining whether you even need to file an I-212 waiver application to enter the US.. Your case might fall within a legal loophole — if you received “voluntary departure” from an immigration judge and you departed the US in a timely manner, for example.
- Helping you complete your I-212 waiver application in an accurate and complete manner.
- Helping you put together your application (including supporting documents) in a logical and persuasive manner. This will require a full understanding of the details of your case and how they apply to the nuances of US immigration law.
- Helping you obtain the most persuasive possible supporting documents in a timely manner (a relative’s long-form birth certificate, for example).
- Advising you on what kinds of affidavits you will need, what their content should include, and who should issue and sign them.
- Drafting and submitting a legal brief, to be submitted with your application, summarizing the evidence in your favor, and minimizing any negative factors. This brief is designed to persuade the examining immigration official to approve your application, and it can be very influential.
- Handling any followup activities such as requests for additional evidence, and doing so in a timely manner.
- Helping you apply for a US visa if your I-212 application is approved.
The Law is Constantly Changing
One more service that a skilled immigration lawyer can provide you is to help you keep up with changes in immigration law. US immigration law frequently changes, and what works today may not work tomorrow. Moreover, immigration law is particularly sensitive to the prevailing political climate, which also has a tendency to change rapidly in the US. Nevertheless, the more you understand about the I-212 process, the more you will be able to help your lawyer help you.