Frequently Asked Questions: I-212 Waivers

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An I-212 waiver is a waiver of inadmissibility under sections 212(a)(9)(A) or (C), and criminal penalties under section 276 of the Immigration and Nationality Act.Section 212(a)(9)(A) underINA: ACT 212 makes certain aliens previously removed from the United Stated ineligible to obtain an immigration benefit. This includes aliens who have been ordered removed undersection 235(b)(1) or at the end of proceedings undersection 240 initiated upon the alien’s arrival in the United States and who again seeks admission within 5 years of the date of such removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of an alien convicted of an aggravated felony) is inadmissible.

Section 212(a)(9)(C) makes aliens who are unlawfully present in the United States after a previous immigration violation inadmissible. This includes aliens who have been unlawfully present in the United States for an aggregate period of more than 1 year, or have been ordered removed underINA ACT 235 section 235(b)(1),section 240, or any other provision of law, and who enters or attempts to reenter the United States without being admitted is inadmissible. This section does not apply to an alien seeking admission more than 10 years after the date of the alien’s last departure from the United States if, prior to the alien’s attempt to be readmitted from outside of the U.S., the Secretary of Homeland Security consents to the alien reapplying for admission.

Returning to the United States without obtaining consent to reapply or returning unlawfully can have significant consequences including: reinstatement of your removal order under INA section 241(a)(5); prosecution in criminal court under INA section 276; and a permanent bar from admission to the United States under INA section 212(a)(9)(C).

You can file for anI-212 Waiver if you are inadmissible undersection 212(a)(9)(A) but not INA section 212(a)(9)(C) and you are an applicant for an immigrant or non-immigrant visa, or adjustment of status under INA section 245 if:

  1. You were actually removed from the United States, or
  2. Departed the United States on your own after being issued an order of removal; and
  3. You seek admission or adjustement of status:
    • At any time if you have been convicted of an aggravated felony; or
    • Before you have been outside the United States for a continuous period of:
      • 5 years if you were removed as an arriving alien, but only once;
      • 10 years, if you were removed other than as an arriving alien, but only once; or
      • 20 years if you were removed more than once, whether as an arriving alien or not.

If you are inadmissible under INA section 212(a)(9)(C) you may not file an application for consent to reapply if you are in the United States or you have not been physically outside the United States for more than 10 years since the date of your last departure from the United States.

  1. If you have already been excluded, deported, or removed from the United States and are currently outside the country, you must seek consent to reapply before returning to the United States.
  2. If you have been ordered removed, but have not left the United States you may file your application for consent to reapply before you leave the United States under the removal order. The approval is considered conditional until you actually depart the United States.
  3. If you are inadmissible under INA section 212(a)(9)(C)(i), you cannot file an application for consent to reapply until after being outside of the United States for at least ten years.

You may not be required to file for consent to reapply if:

  1. You were inadmissible under INA 212(a)(9)(A), but your inadmissibility period has expired;
  2. You were allowed to withdraw your application for admission at the border, and you departed from the United States within the time specified for your departure;
  3. You were refused entry at the border, but not formally removed;
  4. You were refused admission as an applicant under the Visa Waiver Program;
  5. You departed from the United States after having been unlawfully present for a year or more, in the aggregate but you were paroled into the United States;
  6. You were previously deported from the United States after having been ordered excluded, deported, or removed, but when returning to the United States through a U.S. port-of-entry, you were paroled into the United States;
  7. You received an order of voluntary departure from an immigration judge and left the United States during the time period specified in your voluntary departure order;
  8. You are an applicant for Registry under INA section 249;
  9. You are in U non-immigrant status and you are applying for adjustment of status under 8CFR 245.24; or
  10. You are an applicant for Temporary Protected Status (TPS) under INA section 244.

Permission to reapply for admission is discretionary and there are many factors that are taken into consideration, including:

  • 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.
  • If there is a criminal conviction, whether or not you are rehabilitated.
  • 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.