212 Waiver  

A foreign national who is inadmissible under section 212(a)(9)(A) or (C) of the Immigration and Nationality Act (INA) must file Form I-212 to obtain consent to reapply for admission to the United States (consent to reapply)  before the foreign national can lawfully return to the United States. "Consent to reapply" is also called "permission to reapply."

Eligibility to File for 212 Waiver

You have been deported (removed) from the United States, you are inadmissible and barred from visa eligibility for five, ten, or 20 years, and perhaps permanently, depending on the reason for your removal. If you are otherwise eligible for a visa, you can ask for “permission to reapply” or “consent to reapply” for a visa to reenter before the expiration of your inadmissibility by filing Form I-212: Application for Permission to Reapply for Admission into the United States after Deportation or Removal.
  
The number of years you are inadmissible is determined by which of the following removal scenarios applies to you:
  • Five-Year Bar: If you were removed upon arrival in the U.S. (expedited removal) or were placed in proceedings upon arrival and then ordered removed by immigration judge, you are subject to the five-year bar on reentry from the date of your removal.
  • Ten-Year Bar: If you entered the U.S. and were later placed in removal proceedings, or if you left the U.S. willingly but before removal proceedings were concluded, you are subject to the ten-year bar on reentry from the date of your removal.
  • Twenty-Year Bar: If you have been removed from the U.S. on more than one occasion, you are subject to the 20-year bar from the date of removal.
  • Permanent Bar: If you were convicted of an aggravated felony, you are permanently inadmissible and forever barred from reapplying for a visa without filing Form I-212. If you are permanently barred under Section 212(a)(9)(c) of the Immigration and Nationality Act (I.N.A.), because you aggregated one year's unlawful stay in the U.S. and left, or you were ordered removed from the U.S, and then you attempted to reenter illegally, you must wait ten years before filing Form I-212.

If my application is approved, is my previous visa status restored?
  • No.  An approved application for permission to reapply, does just that – gives you permission to reapply for a new visa.  This means you must start over in the process and must qualify to receive the visa. For example, if you became a lawful permanent resident based on being the spouse of a U.S. citizen, after obtaining permission to reapply for a visa, you will have to start over from the very beginning of the immigrant visa process. But if circumstances have changed such that you no longer qualify for the original visa -- for example, you divorced prior to your removal -- you will no longer qualify for an immigrant visa. 

What if I no longer qualify for my visa?
  • If you no longer qualify for an immigrant (permanent) visa, you may still qualify for a nonimmigrant (temporary) visa, such as an employment visa.
  • If you no longer qualify for the nonimmigrant visa you previously held, look into whether any other nonimmigrant visas are potentially available to you.

When seeking permission to reapply for a nonimmigrant visa, you should contact the U.S.consulate where you intend to apply; like the I-212(d) nonimmigrant waiver application, you may not be required to formally file the form. Instead, the adjudicating officer will determine whether or not to grant the permission as a matter of discretion. 

NOTE: For most nonimmigrant visas you will be required to show that your stay in the U.S. is intended to be temporary, and that you will return home when it's over. You can demonstrate this with evidence of such ties as a residence or job in your home country that you have no intention of abandoning.

Where do I file my application?
  • You will need to file Form I-212 with either U.S. Customs and Border Protection (CBP), the U.S. Department of State (DOS), the Executive Office for Immigration Review (EOIR), or U.S. Citizenship and Immigration Services (USCIS), depending on where you are and how you intend to enter the United States.  

What is the chance that my application to reapply will be approved?
  • There is no way to know for sure whether your application will be approved.  Permission to reapply for admission is always discretionary and there are many factors that will be taken into consideration, including but not limited to:
  • Whether or not you have close family ties in the U.S.
  •  Any unusual hardship that may occur to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer if you are not permitted to reapply
  • Whether or not you are rehabilitated (if criminal activity led to your deportation)
  • Your length of previous presence in the U.S. and your status during that time
  • Whether or not you demonstrated respect for laws and are of good moral character
  • Whether or not admitting you into the U.S. would be contrary to the welfare, safety, or security of the U.S.
In deciding your case, any negative factors involved will be weighed against the favorable factors in making a determination. Decisions are made on a case-by-case basis. It is important to note that the information provided here is certainly not all-inclusive regarding the requirements and qualifications for filing Form I-212.

For your specific question, please contact our office for a valuable consultation.