I-212 Waivers Overview

When an individual has been removed from the United States, committed fraud to obtain immigration benefits, or entered the United States without inspection and remained in the country for over one year, said individual would need to apply for a waiver or multiple waivers in some cases to be able to adjust their immigration status or petition for a nonimmigrant visa.  Waivers are always discretionary, and the government has the discretion to allow the Waiver based on the individual circumstances. It is especially important that you do not attempt to do a waiver yourself or go to someone that does not have experience. In this instance, we are going to discuss the I-212 Waiver and how you may benefit from it.

Why would you need an I-212 Waiver?

A person that has attempted to enter the United States unlawfully or entered the United States after being been removed you would be subject to a bar from reentering the country for several years. The number of years depends on the reason for your removal. Some situations could make you permanently barred from ever entering the United States. The I-212 Waiver, which is also known as Consent to Reapply, would be the Waiver that you must file and get it approved before you obtain any immigration benefits. However, this Waiver only applies if you wish to reenter the United States before you are the expiration of your bar. If you apply after the time bar, you do not need such a waiver.

How do I know if I need an I-212 Waiver or Consent to Reapply?

In accordance with Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act, an individual who has been ordered removed may not be readmitted to the U.S. until they have remained outside of the United States for 5, 10 or 20 years. However, an individual that has committed an aggravated felony conviction is permanently barred from re-entry.

Further, Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act also applies to individuals that unlawfully enter or attempt to enter the United States. Individuals that have certain prior immigration violations can be permanently barred.

The I-212 Waiver only applies to individuals that wish to enter the United States before their applicable bar expires, 5, 10, or 20 year-bar, depending on your situation. If your barred time has expired, 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. Individuals that are subject to the permanent bar will always need an I-212 waiver to seek admission to the United States.

Do you need an I-212 waiver every time I apply for immigration benefits?

Once an I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, or Consent to Reapply is approved, the approval does not expire. It is valid indefinitely unless the government does not revoke the approval, or you have not committed any further violations that would make you inadmissible. The form can be used for immigrant and nonimmigrant purposes.

It is important that you file and get approved an I-212 waiver before returning to the United States. Failure to do this may have severe consequences such as the reinstatement of your removal order, the prosecution in criminal court, and a permanent bar from admission to the U.S.

How do I know which bar applies to me?

The Five-Year Bar

The five-year bar may apply under the following circumstances:

• If you were detained and ordered removed upon entry to the United States. This many times is done through an expedited removal proceedingby U.S. Customs & Border Protection (CBP) at a U.S. port of entry. See INA section 212(a)(9)(A)(i)
• If you were placed on removal preceding upon entry to the United States and an immigration judge ordered your removal. See INA section 212(a)(9)(A)(i)

The Ten-Year Bar

The ten-year bar may apply under the following circumstances:

• If an immigration judge ordered your removal in court proceedings other than being an arriving alien. See INA section 212(a)(9)(A)(ii)
• If you were ordered to voluntary departure, but you failed to leave within the specified time, causing this voluntary departure order to be converted into a removal order. See INA section 212(a)(9)(A)(ii)

• If you left the U.S. on your own will before any removal proceedings concluded or while the removal order was still pending.  See INA section 212(a)(9)(A)(ii)

The Twenty-Year Bar

Individuals that have been ordered removed from the United States several times and attempt to reenter the country or are found in the U.S. are subject to the twenty-year bar. See INA section 212(a)(9)(A)(ii)

The Permanent Bar

The permanent bar may apply under the following circumstances:

• If you were convicted of an aggravated felony.  See INA section 212(a)(9)(A)(ii)
• If you reentered the United States or attempted to reenter unlawfully after being in the United States for more than one year with unlawful presence and left the United States or after you were ordered removed from the U.S. See INA section 212(a)(9)(C)

Other things to keep in mind about the I-212 Waiver

The I-212 Waiver or Consent to Reapply has its limitations. This Waiver, if granted, permits you to apply for admission under an immigrant or nonimmigrant status, Visa Waiver Program, or adjustment status if you are physically in the United States. You may need other waivers to gain admission to the United States.

Obtaining an I-212 waiver does not grant any previous immigration status that you may have before you were inadmissible, which means that you would have to start the immigration process over.  For example, if you had a green card, but you were removed, you would have to apply again to obtain a green card and have a qualifying relative. As mentioned, once you have the Waiver approved, you can use it for any other immigrant or nonimmigrant visas.

Some individuals may have multiple grounds of inadmissibility for which additional waivers would be required. The I-212 alone is not sufficient. Unfortunately, there are not universal waivers; you may have inadmissibility issues for which there may be no waivers.

When considering any immigration decisions, it is always recommended to consult an experienced immigration attorney that can analyze your case and give you legal advice on your particular situation. Because immigration laws, regulations, and policies are always changing, the legal reference on this article may not be up to date. This article is not intended as legal advice, nor does it create an attorney-client relationship. The information on this article, however, is received, it is not intended to guarantee certain outcomes. Call us; we can help!