What are the legal requirements?
Section 212(a)(i)(A)(i) and (ii) of the Immigration and National Act, as added by IIRAIRA Section 301, provide that aliens who have been ordered removed may not be readmitted to the United States until they have stayed outside the U.S. for a specified period of time:
1. Five years for individuals removed through summary exclusion or through removal proceedings initiated upon the person's arrival in the U.S.;
2. 10 years for those otherwise ordered removed after a deportation hearing or who departed the United States while an order of removal was outstanding; and
3. 20 years for a second or subsequent removal.
Foreign nationals who have been unlawfully present for more than one year, or who have been ordered removed, and who re-enter or attempt to re-enter without being admitted, are permanently inadmissible. They must file the I-212 waiver for permission to reapply for admission but may only do so if 10 years have passed since their last departure from the United States.
Foreign nationals who wish to return to the U.S. prior to meeting the required amount of time outside the U.S. must file an application for permission to reapply for early admission pursuant to INA Section 212(a)(A)((iii).
The USCIS exercises broad discretion when adjudicating I-212 waiver requests for permission to reapply. The following may be considered positive factors in granting permission for early re-entry:
- Basis for for the deportation
- Recency of deportation
- Foreign national's length of residence in the U.S., and status held during that presence
- Family responsibilities and ties to the U.S.
- Foreign natonal's evidence of good moral character
- Foreign national's respect for law and order
- Evidence of reformation and rehabilitation
- Hardship involving the applicant and others
- Need for the applicant's services in the U.S.
- Whether the applicant has an approved immigrant or non-immigrant visa petition
- Eligibility for a waiver of other inadmissibility grounds
- Absence of significant undesirable or negative factors
Negative factors may include:
- Evidence of moral depravity, including criminal tendencies reflected by an ongoing unlawful activity or continuing police record
- Repeated violations of immigration laws, willful disregard of other laws
- Likelihood of becoming a public charge
- Poor physical or mental condition (however, a need for treatment in the United States for such a condition would be a favorable factor)
- Absence of close family ties or hardships
- Spurious marriage to a U.S. citizen for purpose of gaining an immigration benefit
- Unauthorized employment in the United States
- Lack of skill for which labor certification could be issued
- Serious violation of immigration laws, which evidence a callous attitude without hint of reformation of character
- Existence of other grounds of inadmissibility into the U.S.
Generally, the I-212 Consent to Reapply for Admission is granted if the foreign national is the beneficiary of an approved family or employment-based petition, has been deported only once before, does not have a criminal record, did not commit significant immigration violations, and can demonstrate hardship to his or her family or employer if not allowed to return.
