The 212 waiver is a form of relief for immigrants who are inadmissible to the United States. However, the 212 waiver is not a guarantee of admission. It is only a request for an exception to the inadmissibility grounds. The U.S. government has the discretion to grant or deny the 212 waiver based on various factors.
Who can file a 212 Waiver?
You are eligible for a 212 waiver if you have been found inadmissible under sections 212(a)(9)(A) or 212(a)(9)(B) of the Immigration and Nationality Act (INA), in general terms you:
- Have been deported (removed) from the United States
- Are inadmissible and barred from visa eligibility for five, ten, or 20 years, and perhaps permanently, depending on the reason for your removal.
- Want to apply for a visa before your bar is lifted
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 an 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.
In sum:
- An approved I-212 allows you to overcome inadmissibility under 212(a)(9)(A) to avoid the time bar
- An I-212 to address inadmissibility under 212(a)(9)(C) allows you to overcome the permanent bar
- You will have to wait ten years outside the country, but
You can eventually come back if the I-212 is approved instead of being permanently barred
If my application is approved, will my previous visa status restored?
No. An approved application for permission to reapply, does just that – permits you 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.
If circumstances have changed such that you no longer qualify for the original visa — for example, you divorced before 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 many factors 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 deciding. 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.
The 212 waiver is a complex and uncertain form of relief for immigrants who are inadmissible to the United States. It requires careful planning and preparation, as well as legal assistance from an experienced immigration attorney. The 212 waiver is not a right, but a privilege that may or may not be granted by the U.S. government. Therefore, immigrants who are considering applying for a 212 waiver should weigh the pros and cons carefully and consult with an immigration lawyer before proceeding.