Category Archives: nonimmigrant visa

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

Posted on October 31, 2016 | Comments Off on 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 (Form I-860).

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).

[UPDATE: On November 12, 2019, in Alasaad v. McAleenan, the U.S. District Court, District of Massachusetts, ruled the CBP and ICE policies for ‘basic’ and ‘advanced’ searches, as presently defined, are unconstitutional because they do not require reasonable suspicion that the devices contain contraband for non-cursory searches and/or seizure of electronic devices. The Court, however, denied the request for injunctive relief to prevent the agencies from “searching electronic devices absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws,” and “from confiscating electronic devices, with the intent to search the devices after the travelers leave the border, without probable cause and without promptly seeking a warrant for the search.” The ruling does not outright prohibit CBP from checking electronic devices. Furthermore, Plaintiffs in this case included 10 U.S. citizens and one permanent resident.]

If you are admitted at Secondary Inspection — after CBP confirms you have no grounds of inadmissibility and you have the proper travel documents — 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. This is most appropriate for persons claiming to be a U.S. citizen, lawful permanent resident, or refugee or asylee.

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 for further review. 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 under INA 212(a)(9)(A)(i). 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 trigger ifetime ban.

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.

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212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Posted on March 28, 2016 | Comments Off on 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Section 212(a) of the Immigration & Nationality Act lists the grounds on which a foreign national is barred from entering the United States. Inadmissible persons may not obtain a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B worker) or enter the U.S. as a nonimmigrant without a section 212(d)(3) waiver. Visa-exempt persons (e.g. most Canadian citizens) and persons who already have travel documents also need the waiver if they are inadmissible to the U.S.

Although the 212(d)(3) nonimmigrant waiver provides several advantages, it also has disadvantages.

What are the Advantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver is broad

For non-immigrants, the 212(d)(3) waiver overcomes almost every ground of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S.

2. The waiver is available to almost all non-immigrants

Inadmissible persons who do not qualify for an immigrant waiver often still qualify for a 212(d)(3) waiver.

For example, a foreign national who is inadmissible due to a crime involving moral turpitude within the last 15 years and who has no U.S. citizen or permanent resident spouse, parent, son or daughter for the 212(h) immigrant waiver may enter the U.S. as a nonimmigrant with a 212(d)(3) waiver.

212(d)(3) waiver applicants do not need to show family ties in the U.S. or prove hardships will result if they are not admitted to the U.S. The standards are much higher for 212(a)(9)(B)(v) (unlawful presence) waiver applicants, for example, who must demonstrate a U.S. citizen or permanent resident spouse or parent will suffer extreme hardship if they are not admitted as an immigrant.

A person has a permanent bar under INA 212(a)(9)(C)(i)(I) [9C1] if he reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after he accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. An immigrant visa applicant must wait outside the U.S. for 10 years before he may file for a Consent to Reapply for Admission (permanent relief) to be excused from the 9C1 bar. In contrast, a nonimmigrant visa applicant may seek a 212(d)(3) waiver (temporary relief) through the U.S. Consulate, at any time, to be excused from the same 9C1 bar.

3. The waiver has flexible eligibility standards

The criteria that applicants must meet to get the 212(d)(3) waiver is not defined by statute. In Matter of Hranka, however, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

When reviewing a 212(d)(3) waiver application, the decision-maker applies a balancing test involving these three factors.

The Board stated there is no requirement the applicant’s reasons for wishing to enter the U.S. be “compelling.” The 212(d)(3) waiver is not only for exceptional, humanitarian or national interest cases. It may be granted for any legitimate purpose such as medical treatment (even if available abroad), family visits, school attendance, and tourism. Even applicants with serious criminal convictions, including aggravated felonies, may file for the waiver.

What are the Disadvantages of the Section 212(d)(3) Nonimmigrant Waiver?

1.  The waiver does not overcome every ground of inadmissibility and is not available to all non-immigrants

The 212(d)(3) waiver does not overcome inadmissibility grounds related to:

  • Security-related grounds (e.g. espionage, sabotage) [INA section 212(a)(3)(A)(i)(I) & (II), (3)(A)(ii), (3)(A)(iii)];
  • Foreign policy considerations [INA section (3)(C)];
  • Participation in Nazi persecutions [INA section 3(E)(i)]; or
  • Participation in genocide [INA section 3(E)(ii)]

Persons who are inadmissible under any of these grounds do not qualify for the 212(d)(3) waiver.

In addition, the 212(d)(3) waiver will not be given to K nonimmigrant visa applicants who are inadmissible under INA 212(a) grounds for which there is no immigrant waiver when they file for permanent residence. And if the INA 212(a) ineligibility ground may be waived after (or as a result of the) marriage to the petitioner, the K visa applicant must file a Form I-601, Application for Waiver of Ground of Inadmissibility, not a 212(d)(3) waiver request.

2. The waiver does not cover inadmissibility grounds that must be excused by a Form I-212 approval or grant of Consent to Reapply

Persons who have been previously removed from the U.S.  and are subject to a 5, 10 or 20 year-bar to re-entry [under INA section 212(a)(9)(A)(i) and (ii)] must file a Consent to Reapply or Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal. 

Furthermore, persons who face the lifetime bar under INA 212(a)(9)(C)(i)(II), i.e. illegal re-entry or attempted illegal re-entry, on or after April 1, 1997, following a removal order, may not use the 212(d)(3) waiver to be excused from this inadmissibility ground. Just like immigrant visa applicants, nonimmigrant visa applicants who are subject to the section 212(a)(9)(C)(i)(II) [9C2] bar must wait outside the U.S. for 10 years before they may file for the Consent to Reapply/Form I-212 waiver.

The Consent to Reapply or “I-212 waiver” must not be confused with the 212(d)(3) waiver. Compared to 212(d)(3) waiver applicants, CTR or Form I-212 applicants must meet higher eligibility standards and evidentiary requirements. For example, close family ties in the U.S. and unusual hardship to U.S. citizen or permanent resident relatives are strong favorable factors in an I-212 application, especially when it is connected to an Immigrant Visa request. These factors are not so important in a 212(d)(3) waiver application and might even work against a person seeking to visit the U.S. temporarily.

3. The grant of the waiver is completely discretionary

It is within the complete discretion of the Admissibility Review Office (ARO), which is part of the U.S. Customs & Border Protection (CBP), to grant the waiver. When you need to receive a visa from the U.S. Consulate, you also first need to convince this agency or the U.S. Department of State to recommend the waiver for the request to be forwarded to CBP.

Qualifying for the waiver doesn’t necessarily mean you will get it. The adjudications officer who weighs the 3 Hranka factors may find the negative factors outweigh the positive factors and deny the waiver request.

There is no formal appeal process. Typically, the only recourse it to file for the waiver again when circumstances change or when more supporting evidence is gathered.

Although the eligibility standards are flexible, the 212(d)(3) waiver is still hard to get, especially when the person is inadmissible due to serious criminal convictions and/or egregious immigration violations. The more recent the violation(s), the higher the obstacles in receiving the waiver.

In addition, to receive most nonimmigrant visas (such as B1/B2 visitor and F-1 student visa), you must overcome the presumption of immigrant intent under INA 214(b). In particular, you need strong ties to a residence abroad that will compel a timely departure from the United States and deter a violation of the terms of the visa. If the U.S. Consulate finds the INA 214(b) requirement is not met, it will not accept or review a 212(d)(3) waiver application.

Validity of the Waiver

The 212(d)(3) waiver may be issued for a maximum period of 5 years or up to the expiration of the visa, whichever is earlier. Normally, the waiver is valid for 1 year, especially for first-time applicants.

[UPDATE: In April 2016, the ARO announced it will generally approve 212(d)(3) waivers for a 5-year period, in both initial and renewal applications filed at the border entry points and at the U.S. Consulate, as of January 2017.  The one exception is for crewmembers whose granted waivers will be valid for two-year periods.]

In all cases, a waiver grant is not transferable to a new visa or to an extension or change of status. The waiver is valid for up 5 years or up to the visa expiration date, whichever is earlier. Once the visa expires, the person normally has to file for a waiver renewal (along with appropriate visa) to re-enter the U.S. as a nonimmigrant.

The authorized period of stay as a nonimmigrant — not the validity period of the waiver — determines when the person must leave the U.S. without violating immigration law.

Filing the 212(d)(3) Nonimmigrant Waiver  

The 212(d)(3) waiver application is filed either with the U.S. Consulate or with the CBP.

Waiver application at the U.S. Consulate

Applicants who need a nonimmigrant visa must file the 212(d)(3)(A)(i) waiver with the U.S. Consulate. When the 212(d)(3) waiver request is filed with the U.S. Consulate, no filing fee and no Form I-92 are required.

After the consular officer reviews your nonimmigrant visa application and makes an initial finding of inadmissibility, you may submit your waiver application on the day of the interview or days after the interview.

Assuming you are otherwise eligible for the visa, but for the inadmissibility bar, the consular officer ought to at least consider your waiver request. If the officer believes the waiver should be granted, he or she will make a favorable recommendation and forward the case to the CBP’s Admissibility Review Office for a final decision. If the officer does not recommend the waiver, the applicant may request review by the Department of State. (NOTE: The waiver application is not forwarded to the CBP’s ARO if the consular officer or Department of State determines the waiver request should be denied.)

If the ARO grants the waiver, the U.S. Consulate then decides whether to actually issue the nonimmigrant visa. Even when the 212(d)(3) waiver is granted, the U.S. Consulate may deny the visa for other reasons, e.g. the B-1/B-2 applicant failed to overcome the presumption of immigrant intent under INA 214(b). A waiver grant facilitates but does not guarantee the issuance of the visa.

Waiver application at the U.S. Port of Entry

Certain nonimmigrants do not require a visa to enter the United States for temporary visits. They include visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands.  [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

When a visa-exempt person files the 212(d)(3) waiver request with the CBP, a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant , plus the filing fee,  are required. The Form I-192 and accompanying documents should be filed in person with the CBP, months in advance of travel.

[UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport. ] 

The CBP will forward the I-192 application and supporting documents to the ARO for further processing.

Exception

Inadmissible persons who are applying for T nonimmigrant status or U nonimmigrant status file the Form I-192 (waiver request) with U.S. Citizenship & Immigration Services (USCIS).

Processing Times

When the 212(d)(3) waiver request is filed with the U.S. Consulate, you can expect a normal processing time of 150 to 180 days before the ARO issues a final determination. The minimum processing time of 60 to 120 days is very rare.

When the 212(d)(3) waiver request is submitted directly to the CBP, you can expect a minimum processing time of 90 to 120 days, but it could be up to 150 to 180 days before the ARO issues a final determination.

Processing times are merely estimates and there can be long delays.

Work with an Immigration Attorney

The 212(d)(3) waiver, by itself, does not allow you to enter the United States. You still need the proper travel documents, including appropriate visa, to seek admission to the United States.

A 212(d)(3) nonimmigrant waiver request should include a cover letter/legal brief, affidavits and supporting evidence demonstrating why you are eligible for the waiver and deserve it as a matter of discretion. Having an experienced immigration attorney guide you through this process will make a positive difference.

For more information, watch the video:

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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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Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

Posted on December 30, 2015 | Comments Off on Coming to America to Get Married and Get a Green Card: B-2 or K-1 Visa?

A foreign national who is living overseas and is in a relationship with a U.S. citizen has two main visa options to come to the U.S., get married, and apply for a green card: the B-2 visitor visa and the K-1 fiancé(e) visa. Each route has advantages and disadvantages.

WHAT YOU NEED TO KNOW ABOUT THE B-2 VISITOR VISA

The B-2 visitor visa is for temporary visits only. Entering the U.S. on a B-2 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the B-2 to Green Card Route

1. B-2 visa applicant or visa holder does not need a sponsor

An invitation letter or Affidavit of Support from an American sponsor is not required for a B-2 visa. Unlike K-1  fiancé(e) visa applicants, B-2 visa applicants are not required to prove a bona fide relationship with a U.S. citizen significant other.

B-2 visa applicants must instead qualify on the basis of their own residence and ties abroad.  There is no medical exam to complete or immigration-related petition for a U.S. citizen relative to file. They just need to file the online nonimmigrant visa application and pay the application fee.

Legitimate purposes of the B-2 include tourism, vacation (holiday), and visits with friends or relatives. Getting married to a U.S. citizen (or permanent resident) during your visit is not prohibited – as long as you intend to leave the country before your authorized period expires.

2. General desire (and even preconceived intent) to immigrate  – in and of itself – does not prevent B-2 visa holder from adjusting status as the spouse of a U.S. citizen

The B-2 to green card route works best when the foreign national decides to get married to the U.S. citizen only after entering the country. The couple might be undecided about the future of their relationship until they spend more time together during the visit. If the U.S. citizen surprised the B-2 visitor with a marriage proposal after he or she entered the U.S., the visitor could show the original intent was truly a temporary visit.

A general desire to remain in the U.S ., when there is an opportunity to do so legally, is not a problem. Furthermore, a fixed intent to immigrate does not bar immediate relatives (e.g. spouses) of U.S. citizens from adjusting status — unless there are other adverse factors that allow USCIS to deny adjustment as a matter of discretion.

3. Concurrently filing the I-130 and I-485 application (one-step petition/application) is the most streamlined way to get a marriage-based green card

Under normal circumstances, a B-2 visitor who is physically present in the U.S., after lawfully entering the U.S., may file a Form I-485 adjustment of status application at the same time the U.S. citizen files the Form I-130 immigrant petition with U.S. Citizenship & Immigration Services (USCIS). The B-2 to green card route is commonly used by immediate relatives of U.S. citizens.

The one-step filing of the I-485 and I-130 is a much more streamlined process than applying for a K-1 fiancé(e) visa, K-3 nonimmigrant visa, or immigrant visa at the U.S. Consulate overseas, based on marriage to a U.S. citizen. You may also stay with your spouse in the U.S. while your green card application is pending, instead of being separated from each other.

Drawbacks of the B-2 to Green Card Route

1.  B-2 visa applicant or visa holder must show non-immigrant intent

To get the B-2 visa or to enter the U.S. as a visitor, the foreign national must have nonimmigrant intent. You need to prove you have strong ties to your home country that you will not abandon and you will leave the U.S. before your authorized stay expires.

The B-2 visa to green card route works best if you are not yet engaged to the U.S. citizen or did not make specific plans to immigrate to the U.S. after entering the U.S.

Entering the U.S. as a visitor simply to marry a U.S. citizen (or permanent resident) does not violate U.S. immigration law, as long as you leave before your authorized stay expires. While this purpose is legitimate, it still carries risks and may lead to your being denied a visitor visa or entry into the U.S. as a visitor.

If you are applying for a visitor visa, you will be asked on the nonimmigrant visa application, and possibly at the visa interview, whether you have any immediate relatives in the U.S. This includes a fiancé(e). If the consular officer learns you have a U.S. citizen fiancé(e) or believes you will marry the fiancé(e)  during your visit, you will likely be denied a visitor visa. This is because the consular officer might suspect you have no intent of leaving the U.S., but will overstay, get married, and apply for a green card to live permanently in the U.S. with your American spouse.

At the U.S. port of entry, the customs officer may deny your entry for the same reason, even if you present a valid visitor visa. If the U.S. Customs & Border Protection (CBP) finds that you cannot show nonimmigrant intent and therefore lack the proper travel documents, it has two choices. It will either (a) allow you to withdraw your application for admission (and likely revoke your visa) OR, (b) issue an expedited removal order, which bars you from returning to the U.S. for five years, unless you obtain a Form I-212 waiver. Either way, you will be instructed to return home on the next available flight.

In certain situations, the CBP might also find that you willfully misrepresented the purpose of your visit to gain entry into the U.S. as a visitor. It may then deny your entry and issue an expedited removal order on this additional ground. If you cannot convince CBP to refrain from issuing (or to vacate) a charge of willful misrepresentation, you face a lifetime bar to getting a green card or immigrant visa. You will then need to qualify for and obtain an I-601 [INA § 212(i)] waiver of inadmissibility.

I-601 waiver applicants must show  their qualifying relative (U.S. or permanent resident spouse or parent) will suffer “extreme hardship” if they are not admitted to the U.S. as an immigrant. This waiver is challenging to get.

2. Fraud or willful misrepresentation to gain immigration benefits prohibits B-2 visa holder from getting a green card

Lying about the purpose of your visit or about whether you have an American fiancé in the U.S. could be deemed to be fraud or willful misrepresentation to gain immigration benefits.

The U.S. Department of State adopted a 30/60 day rule when a foreign national violates his nonimmigrant status. When a B-2 visa holder marries a U.S. citizen or applies for permanent residence within 30 days of entry,  the DOS presumes that he misrepresented his intent in seeking a visitor visa or entry. If the marriage or green card application occurred between 30 and 60 days of entry, the DOS does not presume, but may content there was misrepresentation. If the marriage or green card application occurred after 60 days, the DOS does not consider such conduct to constitute fraud or willful misrepresentation to obtain immigration benefits.

[UPDATE: On August 1, 2017, the DOS replaced the 30/60 day rule with the 90-day rule, which establishes a presumption of willful misrepresentation “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry.” If such actions occur within 90 days of entry, a consular officer “may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.”]

USCIS is a separate agency from the DOS and the Board of Immigration Appeals has held that immediate relatives are exempt from the 30/60 day rule. Nonetheless, USCIS may use it as a guide.

If USCIS finds you committed fraud or willful misrepresentation to get the B-2 visa or to enter the U.S. as a visitor, this presents a permanent bar to getting a green card. You may also be placed in removal proceedings before the Immigration Court.

You may challenge the finding by showing you did not engage in immigration fraud or willfully misrepresented material facts when you applied for the visa or when you sought entry into the U.S. If you are unable to overcome the finding, you will need to apply for and receive an I-601 waiver of inadmissibility.

3. Concurrent filing of the I-130 and I-485 (one-step petition/application) involves strict eligibility requirements

The visitor visa is often misused as a way to enter the U.S., get married, and then apply for adjustment of status (green card) to avoid the longer process of applying for a K-1, K-3 or immigrant visa at the U.S. Consulate.

USCIS officers will carefully scrutinize your marriage to confirm it’s bona fide, i.e. entered into with the intent of establishing a life together as spouses, and not to circumvent U.S. immigration laws. You need to present documentary evidence of your shared residence, commingling of financial resources and other factors showing you have a real marriage. You also have to testify consistently and credibly as to the nature of your relationship and courtship.

As the I-485 applicant, you must show you are not inadmissible due to criminal convictions, health-related reasons, immigration violations, or other factors. The USCIS officer may conduct a full review your records (including your visitor visa application) and ask you questions at the interview to verify you are admissible to the U.S. It may investigate your true intent when you applied for the visa or sought entry on the visa.

An immigrant visa must also be available to the I-485 applicant.  If your spouse is a permanent resident, he or she may file an I-130 petition for you, but you may not file for a green card right away due to the backlog in the F2A (spouse of permanent resident) category.

When you are not in the immediate relative (e.g. spouse of U.S. citizen) category, you must be in lawful nonimmigrant status when you file an I-485. You will need to extend or change status to remain lawfully in the U.S. during the wait. Or you might have to wait until your permanent resident spouse becomes a naturalized U.S. citizen. Because adjusting status as the spouse of a permanent resident carries many obstacles, you likely will have to timely depart the U.S. and apply for an immigrant visa at the U.S. Consulate when one becomes available.

WHAT YOU NEED TO KNOW ABOUT THE K-1 FIANCE(E) VISA

The K-1 fiancé(e) visa is for the specific purpose of entering the U.S. to get married to a U.S. citizen and filing for adjustment of status. Entering the U.S. on a K-1 visa and then applying for a marriage-based green card carry benefits and risks.

Benefits of the K-1 to Green Card Route

1. K-1 visa applicant is not required to show nonimmigrant intent

When you apply for a K-1 visa, you are declaring immigrant intent. Getting married to a U.S. citizen and applying for permanent residence are expected. Unlike B-2 visa applicants, K-1 applicants are not required to present evidence of nonimmigrant intent or strong ties to their home country.

2. K-1 visa is the most appropriate visa for marrying a U.S. citizen in the U.S. and applying for a marriage-based green card

As a K-1 entrant, you bear no risk of being found to have committed visa fraud if you marry the U.S. citizen petitioner and apply for a green card, as you indicated you would.  Because you are required to marry the U.S. citizen within 90 days, the Department of State’s 30/60 day rule does not apply at all.

The K-1 to green card route is the most direct path to obtaining a marriage-based green card when you are engaged to a U.S. citizen.

3. Adjustment of status process for the K-1 entrant is generally simpler

A K-1 visa holder who completed the medical exam within the past year to get the visa is not required to do a medical exam for the I-485 application. You just need to submit the vaccination supplement, and not the entire medical report.

The U.S. citizen also does not have to file an I-130 immigrant petition after the marriage occurs. You simply file the I-485 application based on the approved Form I-129F petition, as long as the marriage occurred within 90 days of arrival in the U.S.

USCIS also has discretion to waive adjustment interviews for K-1 and K-2 entrants, i.e. fiancé(e) of U.S. citizen and children of fiancé(e). If the National Benefits Center (NBC) determines that the I-485 application qualifies for an interview waiver, and the Service Center agrees, the K-1 entrant may be granted a green card without an interview at the USCIS Field Office. This is never the case with the B-2 entrant, who must complete a marriage-based green card interview.

Drawbacks of the K-1 to Green Card Route

1. K-1 visa applicant must prove bona fide relationship with U.S. citizen

The K-1 visa option is available only if you are engaged to a U.S. citizen. It is not available if you are not committed to getting married (or you are already married), or if your fiancé(e) is just a permanent resident.

To get the K-1 visa, you must prove you have a real relationship with the U.S. citizen, communicate with each other often, and intend to marry within 90 days of your arrival in the U.S. Documentary evidence includes written correspondences, telephone records, and airline tickets and travel stamps showing the U.S. citizen has visited the K-1 visa applicant.

2. K-1 visa involves strict eligibility requirements

In the wake of the San Bernardino shooting on December 2, in which 14 people were killed after married couple Syed Rizwan Farook and Tashfeen Malik opened fire at a holiday party, Congress began to review the K-1 visa application process. Virginia Rep. Bob Goodlatte Goodlatte, chair of the House Judiciary Committee, opined that USCIS “sloppily approved” Farook’s K-1 visa petition for Malik.  Goodlatte noted that USCIS failed to verify whether the Pakistani national had met her U.S. citizen husband in person before applying for the K-1 visa.

The K-1 visa process requires the couple to meet in person at least once during the two years before the U.S. citizen files the Form I-129F petition for the fiancé(e). Waiver of the in-person meeting requirement is very hard to get.

For USCIS to approve the Form I-129F petition and for the U.S. Consulate to grant the visa, both the U.S. citizen petitioner and foreign national beneficiary must meet other strict eligibility requirements.

For example, a U.S. citizen who has filed two or more K-1 petitions at any time in the past or had any K-1 petition approved within the prior two years may not file a new K-1 petition unless USCIS grants a waiver of these limitations as a matter of discretion. No waiver will be given to a petitioner with a history of violent offenses except in limited circumstances.

3. K-1 to green card route involves a longer, three-step process

You cannot live with your U.S. citizen fiancé(e) in the U.S. until you get the K-1 visa to enter the U.S. The first step of filing the Form I-129F petition and getting it approved usually takes at least 4 to 6 months. The U.S. citizen has to submit a filing fee with the petition.

After USCIS approves the petition, the K-1 applicant must then submit the online nonimmigrant visa application, pay a visa application fee, complete a medical exam, and attend the visa interview.

The U.S. Consulate usually takes several months to schedule a K-1 visa interview. At the visa interview, the U.S. Consulate may require additional documents to confirm the applicant is still in a bona fide relationship with the U.S. citizen. Administrative processing and background checks by the U.S. Consulate can add several more months to the process.

After you enter the U.S. on a K-1 visa, you must marry the U.S. citizen within 90 days of your arrival. Then you must file your I-485 application and pay the filing fee to complete the green card process. If you fail to marry within 90 days, the U.S. citizen spouse will need to file a Form I-130 petition, following marriage outside the 90 days, so you may file a Form I-485 application. If you do not marry at all, you become removable from the U.S. and you cannot adjust through marriage to another U.S. citizen or through any other means.

Although USCIS may waive the adjustment of status interviews for K-1 entrants, it usually does not. Following the San Bernardino shooting, USCIS is expected to waive even fewer interviews. At the interview before USCIS, the couple must prove they have a bona fide marriage and the I-485 applicant must show he or she is admissible to the U.S.

Want to hear about this topic? Check out this video:

WHICH IS BETTER: B-2 or K-1? 

Whether to use the B-2 or K-1 to join your significant other in the U.S. depends on your situation. You need to weigh the advantages and disadvantages of each route when deciding which to take.

Consult an experienced immigration attorney to help you determine whether the B-2 or K-1 is more appropriate for you. Although both can lead to a marriage-based green card, each carries benefits and drawbacks.

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?

Posted on October 24, 2015 | Comments Off on 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 or Consent to Reapply for Admission (CTR) to obtain any U.S. visa or lawful admission to the United States.

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

Although “I-212 waiver” is a common term for the Consent to Reapply, an official Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal, and filing fee are not always required. An example is when you request the CTR in a nonimmigrant visa application at the U.S. Consulate or Embassy.

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 or CTR request is at the agency’s discretion, which means the adjudicator will weigh the favorable and unfavorable factors in making a decision.

The Form I-212 Instructions list examples of favorable factors and unfavorable factors that are considered. 

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 criminal activity or immigration violation that resulted in your deportation will occur again.
  • Eligibility for a waiver of other inadmissibility grounds.
  • The need for your physical presence in the U.S.
  • Absence of significant undesirable or negative factors.
  • Likelihood that you will maintain status during authorized stays in the U.S.
  • 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 long criminal history or multiple offenses.
  • 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 or CTR request 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 stopped and refused admission at the U.S. port of entry or border, and 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 your Form I-212 (if needed) is completed and filed properly with the correct agency.  Without a lawyer’s guidance, it can be easy to overlook critical questions and difficult to determine where you should request the CTR. 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 a Form I-601 waiver (for immigrant visa) or a Form I-192 waiver/INA section 212(d)(3)(A)(ii) waiver (for nonimmigrant visa) as well. While the I-212 or CTR 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 testimonies 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.

***

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)?

Posted on October 23, 2015 | Comments Off on 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 (CTR). Although the two terms are used interchangeably, a CTR request does not always involve the filing on an official Form I-212 and application fee.

When Do I Need an I-212 Waiver or Consent to Reapply?

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.

When 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, or Consent to Reapply is valid indefinitely, as long as it is not revoked by the agency that issued the approval.

When the I-212 grant or Consent to Reapply provides permanent relief, it may be used for future immigrant or nonimmigrant purposes, as long as you do not incur new inadmissibility under INA section 212(a)(9)(A) or (C).

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, 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)]. NOTE: For purposes of this permanent bar, it does not matter whether you have been convicted of an aggravated felony in or outside the United States, whether the conviction itself resulted in the removal order, or whether the conviction occurred prior to or after the removal order.
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. [INA section 212(a)(9)(C)(i)(I).]
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you were ordered removed from the U.S. [INA section 212(a)(9)(C)(i)(II)].

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 removed for reasons other than the 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.

NOTE TO IMMIGRANT VISA APPLICANTS: If you are subject to the permanent bar under INA 212(a)(9)(C)(i) 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 NONIMMIGRANT VISA APPLICANTS: If you are inadmissible under INA 212(a)(9)(C)(i)(I) [9C1] and seek a nonimmigrant visa, you may file for temporary relief at any time through the U.S Consulate.  This is referred to as a 212(d)(3) waiver instead of a Consent to Reapply for Admission. The U.S. Consulate may submit an ARIS Waiver Request Form through the ARIS system. If granted, this relief is temporary and may not be extended to any future visa applications.

If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than ten years have passed since the bar was incurred, you may file the Form I-212 with USCIS (DHS) to obtain a Consent to Reapply. If granted, this relief is permanent and allows the issuance of a full validity visa.

A nonimmigrant visa applicant who is barred under INA 212(a)(9)(C)(i)(II) [9C2] must wait 10 years outside the U.S. before he may file a Form I-212 with USCIS (DHS). ARIS is not used by the U.S. Consulate for this relief. If granted, this allows the issuance of a full validity visa.

What are the Limitations of the I-212 Waiver or Consent to Reapply?

The I-212 waiver or Consent to Reapply alone is generally not enough to request lawful admission to the United States. It only gives you permission to apply for admission with a nonimmigrant visa, immigrant visa or, in some cases, adjustment of status, when you are inadmissible under INA 212(a)(9).

Only visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands do not need a visa to enter the United States for temporary visits. [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

If your waiver is granted, your prior visa status is not restored. Instead, you merely have permission to apply for a new visa or admission to the United States. 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)] immigrant 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)] immigrant waiver is available to some foreign nationals for some criminal grounds. A 212(d)(3) nonimmigrant waiver is available for most inadmissibility grounds.

Where Do I File My Form I-212 Application or Request for Consent to Reapply?

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 request for 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): request a Consent to Reapply at 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.

K or V nonimmigrant visa applicants: file Form I-212 with the USCIS Phoenix Lockbox, which will forward your application to the Nebraska Service Center.

Nonimmigrant visa applicants with INA 212(a)(9)(C)(i) bar. If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than 10 years have passed, the Form I-212 is filed with USCIS (DHS). If section 212(a)(9)(C)(i)(II) [9C2] applies, you must wait 10 years before you may file the Form I-212 with USCIS [DHS].

Nonimmigrant visa applicants with the 212(a)(9)(C)(i)(I) [9C1] bar – but NOT the 9C2 bar – may seek temporary relief [212(d)(3) waiver] through the U.S. Consulate at any time.

Nonimmigrants or visa-exempt citizens 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. [UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries — Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands — file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport.]

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/or 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 or Consent to Reapply 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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