Tag Archives: 212(d)(3)(A)(ii) waiver

212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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When do you need an I-212 Waiver (and how do you get it)?

iron gateIf you have been removed from the U.S., you are barred from reentering the country for a set number of years or perhaps permanently, depending on why you were removed. Illegal (or attempted illegal) reentries to the U.S., in certain situations, also make you permanently inadmissible. To be admitted to the U.S. while the bar still applies, you must file for and obtain an I-212 waiver.

When Do I Need an I-212 Waiver?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. An aggravated felony conviction, however, creates a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act further state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

If you are subject to the 5, 10 or 20 year-bar, you do not need the I-212 waiver if you wait outside the U.S. for the duration of the bar before you seek admission to the U.S. But if you wish to lawfully reenter the U.S. before the time bar expires, you must obtain an I-212 waiver.  And when a permanent bar applies to you, you will forever be required to obtain an I-212 waiver.

An approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, is valid indefinitely, as long as it is not revoked by the agency that issued the approval. You may use the I-212 approval for any future immigrant or nonimmigrant purposes, as long as you do not incur new inadmissibility under INA section 212(a)(9)(A) or (C) that requires you to file a new application.

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).

Five-Year Bar

You have a five-year bar on reentry from the date of your removal 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 as an arriving alien. [INA section 212(a)(9)(A)(i)]

Ten-Year Bar

You have a 10-year bar on reentry from the date of your removal if:

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

Twenty-Year Bar

You have a 20-year bar on reentry 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)]

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)].

Key Things to Know About the Permanent Bar

Permanent Bar Under INA section 212(a)(9)(A)(ii)

The permanent bar, due to an aggravated felony conviction, applies even if you were not removed because of this conviction or you were convicted of the aggravated felony after being removed from the U.S.

Permanent Bar Under INA section 212(a)(9)(C)(i)(I) and (II)

The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10 year unlawful presence bar under INA 212(a)(9)(B), there are no exceptions for minors and asylees when it comes to the permanent bar. So if you were under 18 when your parent took you to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

If you are subject to the permanent bar and seek an immigrant visa, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212. Based on 2006-2007 Board of Immigration Appeals case law and 2009 USCIS policy, an I-212 application for waiver of this permanent bar cannot be approved unless you are outside the U.S. and at least 10 years have elapsed from your date of departure.

NOTE TO I-360 VAWA SELF-PETITIONERS: If you are a VAWA self-petitioner, you do not have to wait outside the U.S. for 10 years to apply for a separate waiver of the INA 212(a)(9)(C) inadmissibility ground. But you must establish a connection between (i) your battering or subjection to extreme cruelty at the hands of your U.S. citizen or permanent resident spouse and (ii) your removal, departure from the United States, or illegal re-entry into the U.S.

NOTE TO NONIMMIGRANTS:  As an alternative, you may seek an INA section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole. The 212(d)(3) waiver is only for nonimmigrants and does not overcome the permanent bar for immigrant visa applicants. You also have to qualify and apply for the nonimmigrant visa itself.

What are the Limitations of the I-212 Waiver?

The I-212 waiver only gives you permission to apply for admission with an immigrant visa or nonimmigrant visa, through the Visa Waiver Program (VWP), or by adjustment of status (if you are physically present in the U.S.) The waiver alone is not enough to gain lawful admission to the U.S.

If your I-212 waiver is granted, your prior visa status is not restored. Instead, you merely have permission to apply for a new visa. For example, if you previously had lawful permanent residence based on marriage to a U.S. citizen, but were removed from the U.S., you must seek a new immigrant visa after the I-212 waiver is granted. If you are now divorced, you will no longer qualify for the immigrant visa based on the same marriage. You may, however, use the I-212 waiver to apply for a visa on another basis.

The I-212 waiver is also not enough if you have other grounds of inadmissibility for which there is no waiver or for which there is a waiver, but you do not qualify.

For instance, fraud or willful misrepresentation of material fact to gain immigration benefits, under INA 212(a)(6)(C)(i), and certain crime-related grounds under INA 212(a)(2) make you permanently inadmissible. An I-601 [INA § 212(i)] waiver is available to overcome the fraud/willful misrepresentation bar when you have a qualifying relative who will suffer extreme hardship if you are not admitted to the U.S. An I-601 [INA § 212(h)] waiver is available to some foreign nationals for some criminal grounds.

Where Do I File My Form I-212 Application?

Whether you are in the U.S. or abroad, the reasons you were deported, the type of visa you intend to use to enter the U.S.,  whether you also need an I-601 waiver, and other factors determine where you file your I-212 application.

There are various potential filing locations, including the U.S. Consulate that will issue the visa if the waiver is granted; the  U.S. Citizenship and Immigration Services (USCIS) Field Office having jurisdiction over the place of the original removal proceedings; the U.S. Customs and Border Protection (CBP); and the Executive Office for Immigration Review (EOIR). The direct filing addresses for the I-212 are currently posted on the USCIS website.

The current application procedures, which are subject to change, include the following: 

Immigrant visa applicants who also need a concurrent Form I-601 waiver: file Forms I-212 and I-601 concurrently with the USCIS Phoenix Lockbox, which will forward your applications to the Nebraska Service Center.

Immigrant visa applicants who do not require a Form I-601 waiver: file Form I-212 with the USCIS field office having jurisdiction over the place where your removal proceedings were held. The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.

Nonimmigrant visa applicants (other than K, T, U, or V visa applicants): file Form I-212 with the U.S Consulate with jurisdiction over your nonimmigrant visa application.  The consular officer must then forward a recommendation for consent to reapply for admission and visa issuance to the CBP/Admissibility Review Office (ARO) for a decision.

Nonimmigrants at a U.S. port of entry who are not required to obtain nonimmigrant visas: file Form I-212 in person at a CBP-designated port of entry or a CBP-designated preclearance office, which will then forward it to the CBP/ARO for adjudication.

Adjustment of status applicants who are physically present in the U.S. and are inadmissible only under INA section 212(a)(9)(A): file Form I-212 with the USCIS office having jurisdiction over the Form I-485 adjustment of status application, which will adjudicate both applications.

 

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Applying for an I-212 waiver involves more than just submitting the form and documents listed in the instructions.  True success in obtaining an I-212 waiver is more likely when you have experienced counsel.

When you need the I-212 waiver to reenter the U.S., consult an immigration attorney at least once and, preferably, hire a reputable one to guide you through the process from start to finish.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you to get your I-212 Waiver? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Linda Paul