The I-212 Waiver Application: A Step-by-Step Guide

Approval of your I-212 waiver application might be the only way that you can return to the United States, at least for a long time. Because of this, you need to be particularly careful to avoid any errors or omissions. Use this brief step-by-step guide in conjunction with the I-212 Instructions and advice from your immigration lawyer.

  1. Determine whether you would benefit from an I-212 waiver. Some applicants would not be eligible to return to the US even if they did receive an I-212 waiver.
  2. Leave the United States, if you have not done so already. Remaining in the US will cause you to accumulate unlawful presence, which can be used against you even if you do receive an I-212 waiver.
  3. Complete Form I-212. Part I asks for biographical and identification information. Do not omit anything, and refer to official documents where necessary to jog your memory (your alien registration number, for example).
    • Part I asks for biographical and identification information. Be sure to include any former names, maiden names, aliases or nicknames you have used, as well as the foreign language version of your name if applicable. Don’t take this lightly – failing to include a name could derail your application.
    • Part II is designed to discover why you need an I-212 waiver in the first place. Why were you deported? How many times have you been deported? Why were you deported? When did you last leave the US?
    • Part III seeks information about your deportation and other relevant matters – when you were deported, how long you lived in the US (legally or illegally), where you lived in the US, whether you were detained before you left the US, etc.
    • Part IV seeks information about why you want to obtain an I-212 waiver. What type of visa do you intend to apply for? Do you have any close relatives in the US that could petition for a visa on your behalf?
    • Parts V and VI require your signature and the signature of anyone who helped you fill out the form (your immigration lawyer, for example). By signing the form, you are promising that its contents are true to the best of your knowledge. Deliberately providing false information could result in a criminal prosecution.
  4. Assemble documentation to support your application. This is likely to be the most time-consuming and difficult part of your application. You may need documentation that you will have to request from the US – a US birth certificate, for example. Try to document every statement that you make in your application. Rely as much as possible on certified or original documents (preferably government-issued) and notarized affidavits.
  5. Prepare any other applications that you may need to apply for a visa to enter the US. Many people also require Form I-601 or Form I-601A.along with a separate set of supporting documentation Take as much care with these applications as you did with your Form I-212. You can and should submit these forms together.
  6. Prepare the filing fee, which is $930 as of 2019 (this fee may be “adjusted”, however, and if it is adjusted, don’t expect a downward adjustment. Contact the US embassy or consulate nearest you to find out exactly what form your payment should take (certified check, etc.). You probably cannot pay by credit card.
  7. Send your application, together with all supporting documentation, to the address listed in Appendix I of the I-212 Instructions. The exact address depends on several factors, including the reason why you are currently inadmissible to the US and where you are currently living.
What to Do If Your I-212 Application is Successful

If your I-212 application was approved, congratulations! Despite this victory, however, it is too early to book your flight to the US. All an I-212 waiver does is to grant you the right to apply for a visa to enter the US (assuming that you are not inadmissible for some reason that the I-212 waiver does not cover). Following is an explanation of the relationship between an I-212 waiver and your post-waiver visa status

Airport Man Travel

If I was deported after obtaining a valid US visa, does an I-212 waiver automatically restore my previous visa status?

No. Once you are ordered deported, any visa that you might have had would have been canceled. Suppose, for example, that you entered the US on a student visa valid for your “duration of study” , you dropped out of school, were deported, filed an I-212 waiver application from abroad, and received an approval. This approval does not restore your previous student visa status — you will have to apply all over again.

Even if you were present in the US with a “green card” (permanent residence based on marriage to a US citizen, for example) an I-212 approval will not restore your green card or your right to enter or remain in the US. You will have to start the application process all over again and interview for a US immigration visa at a US embassy or consulate overseas.

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Not Eligible

What if I no longer qualify for my former visa?

If you no longer qualify for your former visa, you might find yourself unable to re-enter the US even with an I-212 waiver. If you dropped out of school, for example, your school will have deregistered you, especially if it discovers that you were deported. All is not necessarily lost, however — you might, for example, find another school willing to admit you, and you could apply for a student visa on that basis.

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Passport - Visas

Can I re-enter the US-based on another type of visa?

Yes, as long as you qualify for the visa. Suppose, for example, that you were living in the US with your US citizen spouse, you were deported and your spouse divorced you. You could perhaps still apply for an employment-based visa, and you could re-enter the US if the visa was granted. Of course, if you were deported for criminal conduct, for example, you might experience practical difficulties in locating a cooperative employer in the US.

If you were originally ordered deported because US immigration authorities believed that your marriage was a sham that was entered into for the sole purpose of obtaining immigration benefits, and then you proceeded to marry another US citizen, you might find it very difficult (but not necessarily impossible) to convince the USCIS that your second marriage was not a sham as well.

Ultimately, it is possible that you may experience a net loss of immigration benefits. If you formerly held a green card, for example, you might find that after your I-212 waiver is granted, you only qualify for an H-1B visa, which is time-limited (it does not necessarily lead to permanent residence).

These ambiguities are all the more reason you should seek the assistance of an experienced immigration lawyer even after receiving an I-212 waiver. It is possible in many cases to restore an I-212 waiver recipient’s former immigration status. Some such people have even gone on to become US citizens.

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How to Win Your I-212 Waiver Application?
I-212 Waiver Application

Introduction

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.

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Deportation and the I-212 Waiver

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.

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Prison Bars

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.

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Man Waiting inside Airport

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).

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Re-entering US

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.

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Polygamist Marriage

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;
  • Polygamy;
  • Submitting a frivolous application for asylum;
  • Renouncing your US citizenship for tax avoidance purposes.

Other unwaivable bars may apply as well.

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Winner

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.

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Immigration Documentation

Supporting Documentation

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.

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Justice Statue

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.

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Law Book

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.