I-212 Application for Admission After Removal / Admission After Deportation
What is an I-212 Application?
An I-212 application is an application for readmission to the United States after being legally deported, or removed. Be aware that illegal reentry after deportation or removal is a federal crime pursuant to INA 276. The penalty includes imprisonment of up to 2 years, or 10 years if the past removal was based on a conviction for 3 or more misdemeanors involving drugs, crimes against the person, or both, of a felony (other than an aggravated felony, for which the penalty can be 20 years).
Those who have opted for voluntary departure are not exempted from having to file the I-212 application for readmission. Note that foreign nationals are subjected to inadmissibility bars after being previously expelled. There is a 5-year bar for a first offender (including those subjected to an order of expedited removal), a 10-year bar for aliens ordered removed after a removal order 20 years for a second or subsequent removal, and a permanent bar for removal based on conviction of an "aggravated felony." If the bar time has passed, the I-212 is not necessary.
How do I Qualify?
Unlike the I-601 waiver, the I-212 application has no specific prerequisites, such as a qualifying relative. These waivers are granted on a case-by-case basis. The standard is discretionary, however, case law (Matter of Tin, 14 I&N Dec. 371 (RC 1974)) provides that the following factors are to be considered, where the favorable factors should outweigh the unfavorable factors:
(1) The basis for deportation
(2) Recency of deportation
(3) Length of residence in the U.S. (can only be a positive factor if residence was legal)
(4) Moral character of the applicant
(5) His respect for law and order
(6) Evidence of reformation and rehabilitation
(7) Family responsibilities of applicant
(8) Inadmissibility to the U.S. under other sections of law
(9) Hardship involved to himself and others (10) The need for his services (employment) in the U.S.
What is the Procedure to Apply for an I-212 Application?
Pursuant to 8 CFR 212.2(d), those who are filing an immigrant visa in the US (often with an I-601) should file the application with the USCIS district office that has jurisdiction over the location where the removal proceedings were held. However, if the visa application is filed abroad, then the I-212 is filed with the consular post having jurisdiction over the applicant's foreign residence.
If the applicant is seeking a non-immigrant visa, then the application is filed with the visa and 212(d)(3) application. The consular officer will forward the application to the USCIS district director over the place where the removal proceedings were held.
As for visa-exempt applicants/Canadians, the I-212 is filed with the CBP at a US Port of Entry. The CBP would then forward the application to the USCIS having jurisdiction over the Port of Entry.
What is the Processing Time on I-212 Applications?
Processing times for I-212 varies considerably, but in general, 4 months is a reasonable estimate with USCIS. It may be faster, or considerably longer. It is important to make status inquires on pending I-212 applications.
What role does an Attorney to Have in Preparing an I-212 Application?
The attorney will work with the client to determine which arguments are strongest, and what kind of documentation the client may provide to support eligibility for the application for readmission. The attorney will ensure the quality of documentation. The attorney will also draft a brief, if necessary, to organize the arguments and evidence so as to present a clear and convincing case that the application is worthy of approval. Generally, an I-601 or 212(d)(3) waiver is necessary, so the I-212 is offered as part of the legal service, if necessary.