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 (CTR) 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.
Although the I-212 waiver and Consent to Reapply are two terms that are used interchangeably, a request for a CTR does not always involve the filing of an official Form I-212 and application fee.
The Form I-212 instructions include a list of supporting documents you should 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.
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)?
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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