Form I-212, Application for Admission After Removal
Foreign nationals who have been deported or removed from the United States or who violated the terms of a voluntary departure order by not timely departing the United States, are inadmissible for a specified period of years under INA § 212(a)(9)(A).
Should the foreign national wish to re-enter the U.S. prior to this specified time period, he or she must apply for permission to reapply for admission into the U.S. by submitting Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, to the appropriate agency (dependent on the circumstances of the removal and the purpose for which entry is being sought). The I-212 application is a one time application and is valid for both immigrant and non-immigrant purposes.
In adjudicating an I-212 application, the government considers a list of factors outlined in Matter of Tin and Matter of Lee. In Matter of Tin, the commissioner held:
In determining whether the consent required by statute should be granted, all pertinent circumstances relating to the applicant which are set forth in the record of proceedings are considered. These include but are not limited to (1) the basis for deportation, (2) recency of deportation, (3) length of residence in the United States, (4) the moral character of the applicant, (5) his respect for law and and order, (6) evidence of reformation and rehabilitation, (7) his family responsibilities,(8) any inadmissibility to the United States under other sections or law,(9) hardship involved to himself and others, and (10) the need for his services in the United States. (emphasis added).
[Matter of Tin, 14 I&N Dec. 371, 373 (RC 1974)].
In Matter of Lee, the commissioner held:
...recency of the deportation can only be considered when there is a finding of poor moral character based on moral turpitude in the conduct and attitude of a person which evinces a callous conscience. in such circumstances, there must be a measurable reformation of character over a period of time in order to properly assess an applicant's ability to integrate into out society. In all other instances when the cause of deportation has been removed and the person appears eligible for issuance of a visa, the time factor should not be considered.
The commissioner also found that congressional intent of the law regarding the subject of previously deported and excluded aliens was written:
"to give a previously deported alien a second chance and connotes a remedial relief rather than a punitive provision of statute."
[Matter of Lee, 17 I&N Dec. 275 (Comm. 1978)].
Therefore, in adjudicating a Form I-212 application, the adjudicating agency will consider the following factors:
- Moral character;
- Need for applicant's services in the U.S.;
- Whether the applicant knew that he or she was deported;
- Length of time the applicant was present in the U.S.;
- Reason applicant was removed;
- Any hardships resulting from deportation;
- Recency of the deportation or removal order;
- Evidence of reformation and rehabilitation;
- Applicant's family responsibilities and ties in the U.S.; and
- Existence of an approved immigrant visa petition for applicant.
As with most waiver applications, permission to reapply for admission is granted in the exercise of discretion, so the government will balance both positive and negative factors in the applicant's case. The following negative factors will be considered:
- Repeated and significant immigration violations; and
- The fact that the applicant is inadmissible based on other grounds for which there is no waiver.
Who Should File the I-212?
You will need to file a Form I-212 if:
- You were removed from the U.S. as an inadmissible alien through expedited removal proceedings under INA § 235(b)(1) that were initiated when you arrived at a port of entry; or
- You were removed from the U.S. as an inadmissible, arriving alien under INA §240; that is, removal proceedings were initiated upon your arrival at a port of entry in the U.S. (Note: the paperwork you received during your removal proceedings should indicate under which provision you were removed under); or
- You violated the terms of a Voluntary Departure order by not timely departing the U.S.
Foreign nationals who are required to file an I-212 are required to file one prior to obtaining either a non-immigrant visa or obtaining their permanent resident status (either through Adjustment of Status or Immigrant Visa Processing). Unlike some waivers, the I-212 waiver is applicable for both non-immigrant and immigrant purposes.
For our clients, our firm thoroughly reviews the basis upon which the client was removed and verifies the need for the waiver. We then gather the necessary information/documents from our client and prepare a comprehensive packet which outlines the client's eligibility for the waiver, including a legal brief which details the clients' background and provides a detiled analysis of the clients eligibility for the waiver, based on precedent case law.