I-212 Waivers: Getting Around the Reentry Bar

Upon being removed (formerly called “deported”) from the U.S., one is barred – that is, prohibited – from reentering the country for a set number of years, and perhaps permanently, depending on the reason the person was removed. If, after being removed, the person illegally (or attempts to illegally) reenter the U.S., they may also be permanently barred and inadmissible to the U.S. To be legally admitted to the U.S. while the bar still applies, you must apply for and obtain an I-212 waiver.

The Bars:

When do you get a Permanent Bar?

You have a permanent bar on reentry from the date of your removal if:

• You were convicted of an aggravated felony.  [INA section 212(a)(9)(A)(ii)].

• You reentered or attempted to reenter the U.S. illegally after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S. [INA section 212(a)(9)(C)].

What is a 20 Years Bar?

The 20 years bar on reentry applies from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not.  [INA section 212(a)(9)(A)(ii)]

What is a 10 Years Bar?

The ten year bar applies if:

• You were ordered removed by an immigration judge in removal proceedings other than as an arriving alien. [INA section 212(a)(9)(A)(ii)]

When do you get a 5 Years Bar?

The five year bar applies if:

• You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry. [INA section 212(a)(9)(A)(i)]

• You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge. [INA section 212(a)(9)(A)(i)]

• You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to removal order.  [INA section 212(a)(9)(A)(ii)]

• You departed the U.S. willingly, but before removal proceedings were concluded.  [INA section 212(a)(9)(A)(ii)]

• You left the U.S. while a removal order was outstanding.  [INA section 212(a)(9)(A)(ii)]

 

The Waiver

If you are subject to the 5, 10 or 20 year bar, you need the I-212 waiver, unless you wait outside the U.S. for the duration of the bar before you seek admission. But if you wish to lawfully reenter the U.S. before the bar expires, you must obtain an I-212 waiver.  And when a permanent bar applies to you, you must always obtain an I-212 waiver.

Returning unlawfully to the U.S. without the I-212 waiver may lead to serious consequences, including reinstatement of your removal order, prosecution in criminal court, and a permanent bar from admission to the U.S. (that requires you to wait outside the U.S. for 10 years before you may apply for the waiver).

There are no specific legal standards for obtaining an I-212 waiver; rather applications are decided on a case-by-case basis, after considering all relevant factors. The approval of the I-212 application is discretionary, such that the agency will weigh the positive and negative factors against each other in making a decision. The waiver will be granted if the positive factors outweigh the negative factors.

Positive factors may include but are not limited to:

• Close family ties in the U.S., i.e who are inside United States and who are directly related to you.

• Unusual hardship to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer in the U.S. Note that just regular hardships might not work. Nonetheless you can still mention them.

• Your family responsibilities or intent to hold family responsibilities. If some of your family is dependent on you, it will be a good factor.

• How long you stayed lawfully present in the U.S. and the status you held during that presence.

• Your respect for law and order. This means if you have not had any negative altercations with the law.

Your good moral character, such as lack of criminal history.

• Reformation and rehabilitation that make it unlikely the problem will occur again (e.g. repeated criminal activity that resulted in your deportation).

• Eligibility for a waiver of other inadmissibility grounds.

• The need for your services in the U.S.

• Absence of significant negative factors.

• Likelihood that you will become a permanent resident in the near future.

• Considerable passage of time since you were deported.

Positive factors may  include but are not limited to:

• Lack of close family ties or hardships. Meaning that you do not really have any family in the United States.

• You have had serious or repeated violations of immigration laws or willful disregard of other laws.

• Bad moral character, including criminal history. You have had successive or several issues with the law.

• Likelihood that you will seek U.S. welfare or become a public charge. This means that you will ultimately not be able to provide for yourself and as such become a dependent on the US government.

• Poor physical or mental condition. Note that if your condition requires treatment in the United States, it is not a negative factor. It can actually be a positive factor.

• Unauthorized employment in the U.S. You work in the United States without any work authorization.

• Your admission would be contrary to the welfare, safety, or security of the U.S. If you can be a threat to national security or a threat to the being of United States.

• Recent deportation or placed in removal proceedings.

In demonstrating that the positive factors outweigh the negative, objective and credible evidence must be provided. Such evidence may be:

• Affidavits from third parties attesting to unusual hardships,the applicant’s good moral character, and other positive factors.

• Evidence of family ties in the U.S., such as birth certificates and marriage certificates.

• Medical reports, psychological evaluations, and other records showing unusual hardships to the applicant and their relatives, or others if the applicant is not admitted to the U.S.

• Evidence of the financial, emotional and psychological impact of family separation.

• Police clearance reports showing the applicant has no criminal history.

• Evidence of rehabilitation and reformation, if the applicant has prior criminal convictions.

• Employment records and other evidence of the applicant’s professional qualifications and work experience.

• Articles and reports on the conditions of the country where the applicant and their family would live if they were not admitted to the U.S.

How We Can Help

It is highly advisable to hire or at least consult an attorney if you want to apply for an I-212 waiver. The application process can be very complex and difficult to navigate. For example, depending on the particular circumstances of the applicant, the waiver may have to include an I-601 waiver to be filed concurrently. Additionally, the filing location will depend on the particular circumstances of the applicant. A skilled attorney can help determine what, precisely, are the grounds of removability, and thus what forms are necessary and where they must be filed. Hiring an attorney can help avoid delays or rejections because the waiver was incorrectly filed. A skilled attorney can increase your chances of having the waiver granted, by thoroughly analyzing the particular applicant’s circumstances, and carefully and thoughtfully compiling the application so as to frame the competing factors in the best light.