Tag Archives: illegal reentry

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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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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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 or Consent to Reapply.

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 Consent to Reapply or 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 waiver grant 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 consent to reapply 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 or Consent to Reapply?

The I-212 waiver pr Consent to Reapply 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 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 or Consent to Reapply.

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 the request for Consent to Reapply 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 or Consent to Reapply 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.

SUBSCRIBE           CONTACT

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