Tag Archives: Form I-212

Approval of Form I-212 + Grant of Immigrant Visa= A True Success Story

A U.S. citizen and his permanent resident sister consulted me about their mother’s immigrant visa case, after the U.S. Consulate found her inadmissible under INA 212(a)(9)(C)(i)(I), i.e. illegal reentry following accrual of more than one year of unlawful presence in the United States.  With my counsel, their mother (my client) filed a Form I-212, Application for Permission to Reapply for Admission Into the United States, which the USCIS Field Office in Salt Lake City, Utah approved on February 17, 2017.

The I-212 approval led the U.S. Consulate to schedule the mother for a follow-up interview and issue the immigrant visa. This was her second immigrant visa application based on an approved I-130 immigrant petition her U.S. citizen son filed for her.

Ten years ago, the U.S. Consulate denied her first immigrant visa application upon finding her inadmissible under INA 212(a)(9)(B)(i)(II), i.e. accrual of unlawful presence of one year or more in the United States prior to departing the country. Because she had no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for the Form I-601 [INA § 212 (a)(9)(B)(v)] unlawful presence waiver, she had to wait 10 years for that bar to expire. After waiting a decade to file her second immigrant visa application, she was shocked to hear she was still permanently barred under INA 212(a)(9)(C)(i)(I).

The mother’s description of her re-entry into the United States — following accrual of unlawful presence of more than one year — indicated she was “waved through” at a U.S. border checkpoint, even though she lacked proper travel documents. In general, this means the person entered the United States as a passenger in a car after an immigration officer waved the car through the port of entry.

I counseled the family on two different paths the mother could take to obtain the immigrant visa: (a) file a motion to reconsider with the U.S. Consulate, requesting it find that the wave through counted as a lawful admission and was not an illegal entry to trigger the permanent bar under INA 212(a)(9)(C)(i)(I); OR (b) file a Form I-212 application to be excused from the permanent bar.

Because the mother lacked objective evidence of a wave through, the family chose to file a Form I-212 application with USCIS instead of a motion to reconsider with the U.S. Consulate.

The applicant must be outside the U.S. for 10 years before she may file a Form I-212 to be excused from a section 212(a)(9)(C)(i)((I) bar. Luckily, my client had already completed the 10 years while she was waiting for the unlawful presence bar to run. After several discussions with the family, I determined there were sufficient favorable factors to get an I-212 approval.

I worked extensively with the family to prepare their written testimonies and gather supporting documentary evidence to prove their mother regretted her past immigration violations, has good moral character, and did not pose a threat to the American community. I also counseled them on how to establish that her denial of admission would cause unusual hardships to her as well as to her family in the United States. In addition, I prepared a legal memorandum outlining the facts and procedural history, citing to the evidence, and discussing why the mother deserved the waiver based on case precedents, statutory law, and existing policies.

While the Form I-212 application remained pending, I sent a follow-up letter to the USCIS Field Office,  requesting approval and including additional evidence of the hardships the U.S. citizen son, in particular, was suffering due to his mother’s absence from the United States.

After several months had passed, the sister called to ask me whether there were any additional steps to take to get the USCIS Field Office to issue a decision.  I began to explain the various ways  (including seeking Congressional assistance) until she stopped me mid-sentence and started screaming with joy. She had just received a message from her brother stating he received the I-212 approval notice!

The mother’s follow-up interview with the U.S. Consulate occurred in April 2017, and shortly after she was issued the immigrant visa. After 13 long years of separation, she may now finally reunite with her family in the United States.

The brother and sister live in different U.S. states,  and their mother lives in a South American country. Although we communicated by telephone and email and never met in person during the course of representation, we developed a strong, trust-based relationship, which contributed to a favorable outcome. This is a true success story for Dyan Williams Law PLLC and for my client and her family.

Preparing approvable Form I-212 applications are among our main areas of expertise. Clients benefit from the advice we give in filing Form I-212 requests to lawfully re-enter the United States following a removal order or other immigration violation.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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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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Approval of Form I-212 + Grant of 212(d)(3) Nonimmigrant Waiver = A True Success Story

To visit the United States, a visa-exempt Canadian citizen needed a Form I-212 approval because he was previously issued a removal order by an Immigration Judge and thus became subject to a 10-year bar to reentry under INA section 212(a)(9)(A)(ii). He also required a 212(d)(3) nonimmigrant waiver due to a 20-year-old conviction, for which he was found inadmissible under INA sections 212(a)(2)(A) (i)(II)(controlled substance violation) and 212(a)(2)(C)(i)(illicit trafficker in controlled substance).

With my legal representation, he received both a Form I-212 approval and 212(d)(3) nonimmigrant waiver grant from the U.S. Customs & Border Protection in April 2017.  He may now visit the United States as a visa-exempt Canadian citizen.

After the Immigration Court denied his motion to terminate removal proceedings and determined he is removable due to his criminal offense, the Canadian citizen reached out to me for help. Despite being married to a U.S. citizen, he could not obtain a family-based green card or immigrant visa because his criminal record makes him permanently inadmissible and  there is no immigrant waiver for his offense.

He and his U.S. citizen spouse had no choice but to establish a new life in his home country. His spouse, however, continued to hold her American-based job and commute between the two countries for employment purposes.  Being able to travel to the United States and accompany his American kids to see their mother is important to him. He could not re-enter the United States without the necessary permission and waiver.

I guided him on how to prove the favorable factors outweigh the negative factors to get an approval of his Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. I also counseled him on how to address the 3 main factors for receiving a 212(d)(3) nonimmigrant waiver: the seriousness of his criminal offense that makes him inadmissible; his reasons for seeking entry into the U.S.; and why he does not pose a risk to the American community.

Facing writer’s block, my client relied on me to help him prepare his affidavit explaining the underlying circumstances that led to his conviction, describing the positive contributions he made in his profession, and the important roles he plays in his family. In addition, I advised him on the documentary evidence to submit to show he deserves the requested I-212 and 212(d)(3) waiver. Because he has an American spouse and previously applied for a marriage-based  green card, for which he is not eligible, he also had to overcome the presumption of immigrant intent to be admitted as a visitor.

Based on the legal briefs and application packets I prepared, the CBP granted both the I-212 and 212(d)(3) nonimmigrant waiver, which permits the Canadian citizen to visit the United States with his American family. Although there were many variables and obstacles in this case, it turned out to be a true success story for Dyan Williams Law PLLC and the client.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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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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Expedited Removal: When Does it Apply and What Are the Consequences?

You may face expedited removal from the U.S. if the Customs & Border Protection (CBP) finds you inadmissible and denies your entry, usually at an airport, seaport, or land border checkpoint. The Form I-860, Notice and Order of Expedited Removal, requires you leave the U.S. immediately and brings serious consequences, such as a visa cancellation with prejudice and minimum 5-year bar to reentry.

On What Grounds May Expedited Removal Be Ordered?

CBP officers must verify whether you are admissible to the U.S. before they let you into the U.S. The CBP not only checks your travel documents, but may also interview you extensively to confirm the true purpose of your trip. The CBP may also check its records to determine whether you have a criminal history, immigration violation or other grounds that make you inadmissible.

Your mere possession of a travel document that is valid on its face does not guarantee your entry into the U.S. Section 235(b)(1) of the Immigration & Nationality Act (INA) permits the CBP to issue an expedited removal order if it finds you are inadmissible under section 212(a)(6)(C) or 212(a)(7). The inadmissibility grounds for an expedited removal order are:

1. Section 212(a)(6)(C)(i) (Misrepresentation), i.e. by fraud or wilful misrepresentation of a material fact, you seek to procure (or have sought to procure or have procured) a visa, other documentation,  admission into the U.S. or other immigration benefit.

2. Section 212(a)(6)(C)(ii) (False Claim to U.S. Citizenship), i.e. you falsely represent or have falsely represented yourself to be a U.S. citizen for any purpose or benefit under immigration law or federal or state law.

3. Section 212(a)(7)(A)(i)(I), (Immigrant Without Proper Visa or Travel Document), i.e. you are an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by immigration law, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required by the regulations.

4. Section 212(a)(7)(A)(i)(II) (Immigrant With Improperly Issued Visa), i.e. you are an immigrant who, at the time of application for admission, has a visa that was not issued in compliance with immigration law.

5. Section 212(a)(7)(B)(i)(I) (Nonimmigrant Without Valid Passport), i.e. you are a nonimmigrant who, at the time of application for admission, is not in possession of a passport valid for a minimum of six months from the date of the expiration of your period of admission or period of authorized stay.

6. Section 212(a)(7)(B)(i)(II)(Nonimmigrant Without Proper Visa or Travel Document), i.e. you are a nonimmigrant, who at the time of application for admission, does not have a valid nonimmigrant visa or border crossing identification card.

Who is Subject to Expedited Removal? 

Expedited removal applies to certain groups or classes, including:

1. Arriving aliens at designated port of entry (e.g. airport, seaport, or land border crossing)

As of April 1, 1997, all “arriving aliens” who seek admission to the U.S. or transit through the U.S. at a designated port of entry may be issued an expedited removal order upon inspection, if CBP finds they are inadmissible under sections 212(a)(6)(C) and/or 212(a)(7).

Currently, expedited removal does not apply to Cuban nationals who arrive at a U.S. port of entry by aircraft.

The expedited removal process may not be used at pre-clearance or pre-inspection units. If the CBP wishes to proceed with expedited removal, it must defer action until the vessel (e.g. aircraft) has arrived in the U.S.

2. Certain other aliens who are already in the U.S. 

Under the April 1, 1997 law, expedited removal also applies to noncitizens who have not been admitted or paroled into the U.S. following inspection by an immigration officer at a designated port of entry, and who have not been physically present in the U.S. continuously for the 2-year period prior to the date of determination of inadmissibility.

3. Foreign nationals arriving by sea, but not at designated port of entry

As of November 2002, foreign nationals who arrive in the U.S. by sea, and not at a designated port of entry, or who are intercepted at sea and brought to the U.S., may be subject to expedited removal if they were not admitted or paroled into the U.S. and have not been continuously present in the U.S. for at least two years.

Currently, expedited removal does not apply to Cuban nationals, crewmen or stowaways. [UPDATE: On January 12, 2017, the Obama Administration announced the U.S. is eliminating this exemption. Expedited removal proceedings may now be initiated against Cubans.]

4. Undocumented immigrants within 100 miles of a U.S. border 

As of August 2004, expedited removal may apply to noncitizens who are encountered within 100 miles of any U.S. land or sea border and who entered the U.S. without inspection less than 14 days before the time they are encountered.

As a matter of discretion, CBP generally applies such expedited removals against third-country nationals not from Mexico or Canada, or Mexican or Canadian nationals with criminal histories or immigration violations.

What are the Consequences of an Expedited Removal Order?

By itself, an expedited removal order carries a 5-year to reentering the U.S. This means you may not obtain an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It

You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court. You have no right to counsel during primary inspection, secondary inspection, or at any other time you request admission to the U.S.

Your best strategy is to avoid an expedited removal order whenever possible. At the very least, work to develop a strong factual record to later challenge it through a request for review with the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or RemovalI-601 immigrant waiver under section 212(i), when seeking reentry as an immigrant, or a nonimmigrant waiver under section 212(d)(3), when seeking reentry as a nonimmigrant.

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP. Otherwise, to be excused from the 5-year bar, you may file the Form I-212 application at any time, in connection with an immigrant visa or nonimmigrant visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns? 

Expedited Removal: How Do You Avoid, Challenge or Overcome It? 

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.

SUBSCRIBE           CONTACT

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Expedited Removal: How Does the Process Work at the U.S. Port of Entry and What Are the Main Concerns?

When you present yourself for admission into the U.S. at a designated port of entry (e.g. international airport), you may be denied entry and issued an expedited removal order if the U.S. Customs & Border Protection (CBP) finds you inadmissible on certain grounds.

The CBP must complete several steps before it issues an expedited removal order.

What Are the Steps in the Expedited Removal Order Process? 

The expedited removal process is governed by federal statute and regulations, plus the CBP’s policy outlined in the Inspector’s Field Manual (IFM). The CBP has broad authority to expeditiously remove you if it finds you inadmissible under sections 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit, section 212(a)(6)(C)(ii)(false claim to U.S. citizenship), and/or section 212(a)(7)(lack of proper travel documents).

Before issuing an expedited removal order, the CBP must perform several procedural steps:

1. CBP Conducts Primary Inspection Upon Your Arrival at the Port of Entry

When you arrive at a designated port of entry, you will join the appropriate customs line for a CBP officer to review your passport and travel documents. U.S. citizens, permanent residents and visitors typically have different waiting lines.

You may be at your final destination or transiting to another U.S. destination or non-U.S. destination. Either way, you will have to request admission to the U.S. at primary inspection. The CBP officer will scan your passport or enter the number into the computer. The officer will also examine your visa(s) and may review the pages in your passport reflecting your travel history. If you are not a U.S. citizen, you will also have your photograph and fingerprints taken.

You can further expect the CBP officer to ask for details about your trip, including its purpose, where you will stay, with whom you will stay, how long you will stay, and whether you have any immediate relatives in the U.S. and their immigration status (if any).

If the CBP officer finds you are absolutely admissible to the U.S., your passport will be stamped for lawful entry. But if you are not clearly admissible, you will be referred to Secondary Inspection.

2. CBP Conducts Secondary Inspection (One) if You Do Not Clear Primary Inspection

The primary CBP officer will note in the system why he or she believes you are inadmissible and you will be escorted to Secondary Inspection. You may have to wait a long time (several hours) to be called for questioning by another CBP officer, usually at an open counter. The CBP officer might also check your personal belongings, including review your messages and communications on electronic devices (cell phones, laptops and tablets).

If you are admitted at Secondary Inspection, because you have no grounds of inadmissibility, but your case was just complicated, you may then claim your luggage and clear customs.

If you are found to be inadmissible at Secondary Inspection due to lack of proper travel documents, immigration fraud or misrepresentation, prior U.S. immigration violations, criminal history, or other grounds, you will be referred to Secondary Inspection Two.

3. CBP Conducts Secondary Inspection (Two) if You Do Not Clear Secondary Inspection One

Secondary Inspection Two is the last opportunity for you to be admitted to the U.S. or be denied entry, detained, and sent back to your country – with or without an expedited removal order.

During Secondary Inspection Two, a CBP officer may search and inspect your personal belongings and luggage, and ask you questions about your trip and travel history. Another, more experienced CBP officer will usually conduct the formal interview and interrogation.

4. CBP Determines Whether Other Options, Besides Expedited Removal, are Available if You Are Not Admitted

If you are not admitted at Secondary Inspection Two, the CBP has several options besides issuing an expedited removal order.

Deferred Inspection

You may be granted Deferred Inspection if the CBP believes you are probably admissible, but lack complete documentation to be admitted at the port of entry. The CBP may schedule you to report to a Deferred Inspection Site at a future date in order to present the necessary documentation and/or information. You will be given a Form I-546, Order to Appear-Deferred Inspection, explaining what information and/or documentation you must present to resolve the discrepancy.

In deciding whether to grant Deferred Inspection, the CBP will consider several factors, such as the likelihood of your establishing admissibility; the type of documents needed and your ability to obtain them; your identity, nationality, age, health, and family ties; the likelihood you would appear at deferred inspection; the nature of the ground of inadmissibility; and the danger you will pose to society.

Being paroled into the U.S for Deferred Inspection is not the same as a formal admission. If you fail to appear for Deferred Inspection, you will be issued a Notice to Appear in Removal Proceedings before an Immigration Judge and your name will be added to the National Automated Immigration Lookout System.

At Deferred Inspection, the CBP officer will review the Form I-546, review your documents, and decide whether to formally admit you, continue your parole, permit you to withdraw your application for admission, or issue you a Notice to Appear in Removal Proceedings before an Immigration Judge.

Permission to Withdraw Application for Admission

You may be given the opportunity to withdraw your application for admission and leave the U.S. immediately (e.g. on the next available flight). The withdrawal spares you from being issued an expedited removal order. But the withdrawal is noted in your record and your visa may still be cancelled, which could affect future visa applications.

The regulations allow CBP in its discretion to permit you to withdraw your application if you intend to and are able to depart the U.S. immediately.  CBP officers are instructed to balance the favorable factors and unfavorable factors to reach a fair decision.  Factors to consider are (1) the seriousness of the immigration violation; (2) previous findings of inadmissibility; (3) intent to violate the law; (4) ability to easily overcome the grounds of inadmissibility; (5) age and poor health of the applicant; and (6) other humanitarian or public interest considerations.

5. CBP Completes Expedited Removal Process if it Determines No Other Option is Available to You

If the  CBP does not grant Deferred Inspection or Withdrawal of Application for Admission, it must create a record of the facts of the case and statements made by you. The CBP officer will take your sworn statement, in a question and answer format, using Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act.

The CBP officer shall read (or have read) to you all information contained on Form I-867A, including a warning that expedited removal carries a 5-year bar to reentry.

You will be asked questions regarding your identity (name, aliases and other biographical data), alienage (citizenship, nationality, and residence), and inadmissibility (reasons for coming to the U.S., information on facts of the case and information on suspected grounds of inadmissibility). The officer will also ask if you have any fears about returning to your home country.

Your responses to questions will be recorded on the Form I-867B and Form I-831, Continuation Page. You shall have the opportunity to read (or have read to you) the sworn statement. You may ask for corrections to be made. The CBP officer will then instruct you to sign and initial each page of the statement and each correction.  By signing the Form I-867B and Form I-831, you affirm that you have read your statement, your answers are true and correct, and the statement is a complete, true and correct record of your interrogation.

The CBP officer must advise you of the charges against you on Form I-860, Notice and Order of Expedited Removal, and you shall be given an opportunity to respond to the charges in your sworn statement.

After obtaining supervisory concurrence, the CBP officer shall serve you with Form I-860 and you sign the reverse of the form acknowledging receipt. The CBP officer must use an interpreter, if necessary, to communicate with you.

What Are the Main Concerns with Expedited Removal? 

There are several concerns with the expedited removal order process, including:

1. You Have No Right to Representation by Counsel

At the port of entry, you have no right to counsel. You have very limited due process rights in an expedited removal proceeding before the CBP, unlike in a regular removal proceeding before the Immigration Court.

You may not ask the CBP to allow you to have representation during the inspection or expedited removal process. The CBP may allow you to speak with a family member or friend by telephone call, but this is completely within their discretion.

During the interrogation and the taking of your sworn statement, you are alone with the CBP officer. The Form I-867A & B, Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act, serves as official documentation of the questions and answers during  the process. It is critical that you read (or have read to you) the sworn statement and that you fully understand the contents before you sign it.

2. You Will Normally Be Detained Until You Are Removed From the U.S. 

An expedited removal order subjects you to detention and to be held in custody by CBP until you are able to leave the U.S.  In the meantime, you are not eligible to be released on bond unless you have a medical emergency or you are needed for law enforcement purposes.

If you are unable to depart in the near future, you will be handed over to the Detention & Removal Operations (DRO) unit of Immigration & Customs Enforcement (ICE). You will be held at a detention facility and returned to the airport for the next available flight.

Otherwise, you will have to wait at the airport in the Secondary Inspection office until your next available flight, which could be 24 to 36 hours later. CBP will fine any airline that is unwilling to transport you back to your country or departing city.

3. You Have No Right to Further Review, Except in Limited Circumstances

Once an expedited removal order is issued, there is no further hearing before an Immigration Court or review before a higher agency or appellate court. There are two main exceptions.

Seek Asylum. If you state an intention to apply for asylum under section 208 or a fear of persecution in your country, you will be referred for a “credible fear interview” before an asylum officer.

If you establish a credible fear of persecution, you will be allowed to apply for asylum before an Immigration Judge, either while in ICE custody or after you are released on a bond. If you are unable to establish a credible fear, you may request a review of this decision in a hearing before an Immigration Judge, while in ICE custody.

Generally, there is no review of the Immigration Judge’s determination that you do not have a credible fear of persecution or torture. You will be removed from the U.S. if you are denied asylum (or withholding of removal).

Claim Lawful Status. When you claim lawful status in the U.S. such as U.S. citizenship, lawful permanent residence or refugee or asylee status, the CBP will review its records to verify your claim.

If the CBP finds such proof, it may then admit you to the U.S. or place you in regular removal proceedings before an Immigration Judge. If the CBP finds no such proof, it will allow you to make a statement under oath regarding your claim of lawful status, issue an expedited removal order, and give you the opportunity to have your case reviewed by an Immigration Judge. You will be removed from the U.S. with no opportunity for further review if the Immigration Judge affirms the expedited removal order.

4. You Will Be Subject to a Minimum Five-Year Bar to Re-entry, as Well as a Lifetime Bar in Certain Circumstances

An expedited removal order automatically carries a 5-year to reentry. You may not receive an immigrant visa or nonimmigrant visa, or otherwise enter the U.S. for a minimum of 5 years from the date of expedited removal.

In addition, if you are found inadmissible under section 212(a)(6)(C)(i) (fraud or willful misrepresentation of material fact to gain immigration benefit), you are barred from the U.S. for a lifetime.

An inadmissibility finding under section 212(a)(6)(C)(ii)(false claim to U.S. citizenship) also triggers a lifetime ban.

Avoid an Expedited Removal Order or Develop a Strong Basis to Challenge or Overcome It

Because an expedited removal order carries serious consequences, you should do your best to avoid it. At a minimum, you need to develop a strong factual record to later challenge it through a motion to the CBP or to support a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, an I-601 immigrant waiver under section 212(i), or a nonimmigrant waiver under section 212(d)(3).

Generally, you have only 30 days from the date of the expedited removal order to request further review by the CBP Field Office that issued the order. The CBP has authority to reopen, reconsider, and rescind the expedited removal order based on new documentary evidence.

Otherwise, to be excused from the 5-year bar, you may file the Form I-212 application at any time, in connection with an immigrant visa or nonimmigrant visa application. The same goes for I-601 immigrant waiver or 212(d)(3) nonimmigrant waiver requests to overcome a fraud or willful misrepresentation finding under section 212(a)(6)(C)(i).

If you are issued an expedited removal order, you should timely consult an experienced immigration attorney to discuss your options. You will also likely need an attorney to help you pursue a rescission of the expedited removal order or obtain the necessary waivers.

To learn more, read our other articles:

Expedited Removal: When Does it Apply and What Are the Consequences?

Expedited Removal: How Do You Avoid, Challenge or Overcome It? 

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.

SUBSCRIBE           CONTACT

Photo by: Russ Thompson

What should you do to get your 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. Having an aggravated felony conviction further subjects you to a permanent bar.

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

When any of these inadmissibility bars apply to you, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant.

What Must I Submit When Requesting an I-212 Waiver?

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

The Form I-212 instructions also include a list of supporting documents you must submit with your waiver request.

There is no specific statutory standards to be met. Applications are considered on a case-by-case basis, and ALL relevant factors are considered. The approval of the I-212 application is at the agency’s discretion, which means the adjudicator will weigh the favorable and unfavorable factors in making a decision.

To obtain the I-212 waiver, you must establish the favorable factors outweigh the unfavorable factors.

Favorable factors include:

  • Close family ties in the U.S.
  • Unusual hardship to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer in the U.S.
  • Your family responsibilities or intent to hold family responsibilities.
  • Length of lawful presence in the U.S. and the status you held during that presence.
  • Your respect for law and order.
  • 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 undesirable or negative factors.
  • Likelihood that you will become a permanent resident in the near future.
  • Considerable passage of time since you were deported.

Unfavorable factors include:

  • Lack of close family ties or hardships.
  • Serious or repeated violations of immigration laws or willful disregard of other laws.
  • Bad moral character, including criminal history.
  • Likelihood that you will seek U.S. welfare or become a public charge.
  • Poor physical or mental condition (unless there is a need for treatment in the U.S., which would be a favorable factor).
  • Unauthorized employment in the U.S.
  • Your admission would be contrary to the welfare, safety, or security of the U.S.
  • Recent deportation.

Personal declarations from you or legal arguments from your lawyer are not enough. You must provide objective and credible evidence, including:

  • Affidavits from third parties attesting to unusual hardships, your 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 you, your relatives, or others if you are not admitted to the U.S.
  • Evidence of the financial, emotional and psychological impact of family separation.
  • Police clearance reports showing you lack a criminal history.
  • Evidence of rehabilitation and reformation, if you have prior criminal convictions.
  • Employment records and other evidence of your professional qualifications and work experience.
  • Articles and reports on the conditions of the country where you and your family would live if you were not admitted to the U.S.

Generally, your I-212 is more likely to be granted if you are the beneficiary of an approved family or employment-based petition or you are otherwise eligible for a visa,  you have only one removal order, you lack a criminal record, you did not commit serious and repeated immigration violations, and you demonstrate unusual hardships to your family or employer in the U.S. if you are not admitted.

Does Hiring an Immigration Attorney Make a Difference? 

You may file the Form I-212 application on your own. But hiring an experienced, skilled and diligent lawyer provides several advantages, such as:

1.  Avoiding unnecessary expenses and delays. The  immigration lawyer can help you determine whether you need an I-212 waiver in the first place. You might not actually need an I-212 waiver for various reasons, including:

  • The 5, 10 or 20 year bar under INA section 212(a)(9)(A) has expired.
  • You were allowed to withdraw your application for admission at the U.S. port of entry or border and you departed the U.S. within the time specified.
  • You were stopped and refused admission at the U.S. port of entry or border, but no expedited removal order was issued.
  • You were refused admission as an applicant under the Visa Waiver Program.
  • You were paroled into the United States after you accrued more than one year of unlawful presence in the U.S. and left, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 3-year/10-year unlawful presence bar and require a separate Form I-601 waiver.]
  • You were paroled into the United States after you were ordered removed from the U.S, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 5, 10, or 20-year bar under INA section 212(a)(9)(A) and require a Form I-212 for that bar.]
  • You received voluntary departure from an immigration court and you departed the U.S. during the voluntary departure period.
  • You are applying for I-485 adjustment of status as a U nonimmigrant.

The immigration lawyer also helps ensure that your I-212 waiver application is filled out completely and filed properly with the right immigration agency.  Without a lawyer’s guidance, it can be easy to overlook critical questions and difficult to determine  where you should submit your I-212 application. The lawyer can prevent unnecessary delays, including rejection notices.

2. Determining whether you are inadmissible on other grounds and whether these grounds can be waived or not.  The immigration lawyer will review the immigration court records (including Notice to Appear in Removal Proceedings and court order) or Customs & Border Protection records (including Notice of Expedited Removal) to determine the reasons for your removal and the duration of the bar.

A lawyer can verify  whether you need an I-601 waiver (for immigrant visa) or an I-192 waiver/INA section 212(d)(3)(A)(ii) waiver (for nonimmigrant visa) as well. While the I-212 covers grounds of inadmissibility under INA sections 212(a)(9)(A) or (C), the I-601 waiver or 212(d)(3)(A) waiver is necessary for other grounds, such as immigration fraud and misrepresentation, the 3-year/10-year bar due to previous unlawful presence in the U.S., health conditions, and criminal convictions.

While eligibility requirements for the 212(d)(3)(A) are relatively flexible, they are strict for the I-601 waiver.  Unlike 212(d)(3)(A) waiver applicants, I-601 waiver applicants must have a qualifying relative (e.g. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if they are not admitted to the U.S.

In addition, a lawyer can advise you on whether you are inadmissible for reasons that cannot be waived at all. These include a determination that you made a false claims to U.S. citizenship, a ruling that you filed a frivolous asylum application, a drug conviction after age 18 (except if it was for simple possession of less than 30 grams of marijuana for personal use), and a finding that you entered into a sham marriage to a U.S. citizen for immigration purposes.

3. Increasing the likelihood that your waiver application will be decided favorably (and in some cases, expeditiously). 

An attentive lawyer will strive to understand the full details of your case, including your family responsibilities; the hardships you, your family and/or employer would suffer if you are not admitted to the U.S.; your professional qualifications; and the conditions in your home country.

A skilled and experienced lawyer will advise you on the documentary evidence and written testimonials you must submit to support your waiver request. He or she will also present a legal brief describing how the positive factors outweigh the negative factors and why you deserve the waiver as a matter of discretion, under the law.

A diligent lawyer will also do any necessary follow-ups to obtain an approval, and request expedited processing when appropriate.

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To present the strongest I-212 waiver request you need to do more than just submit the form and documents listed in the instructions.  True success in getting an I-212 waiver grant is more likely when you have experienced counsel.

Consult an immigration attorney at least once and, preferably, hire a reputable one to help you prepare an approvable I-212 application.

For more information on the inadmissibility grounds that require an I-212 waiver, the limitations of the waiver, and when and where you may file for it, read our related article, When do you need an I-212 Waiver (and how do you get it)?

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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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