Removal Order Reentry Bar Waiver by Joshua M. Reed

If you have a standing order of removal you may feel that you have no options for relief. Facing a lengthy bar on re-entry or inadmissibility (or simply put – being unable to lawfully return to the U.S), makes a standing order of removal even more difficult on those who have family in the United States. Fortunately, relief could be attainable for those who qualify for an I-212 waiver. Many prospective immigrants and attorneys alike, have found themselves in this hitherto unforeseen quandary. Typically, its a situation like Jose’s below whose flummoxed wife recently consulted with our firm – perhaps a tad too late in the game:

Jose (not real name) was excited! His US Citizen wife had just come home with their second baby. Exactly 2 years since, his wife had filed for his “immigration papers” the petition was Approved. His friends had told him about “el perdone”  -the pardon. And his “el Abogado”-lawyer told him all about the i-601A Waiver which allows those who entered the U.S without inspection or permission, are the beneficiary of an approved Petition, no criminal history, and satisfy other criteria to eventually return to their home country get a proper immigrant visa form the local U.S embassy/consulate and return as Green card-holders. The criteria did not bother Jose who 20+ years ago at Age 17 dared to swim across the Rio Grande River – and survived. Now it was all supposedly worth it. Except Jose was denied the Visa for one reason: he forgot to tell his lawyer about the ICE officers who saw him swimming across and picked him up after his brave long swim. Nothing seemed to matter, he was tired -but hey, he had made it! That night, after being processed and fingerprinted, a certain procedure was set in motion, powered by a tiny morsel in Section 212 of the INA….

Section 212(a)(9)(A)(i) and (ii) of the Immigration and National Act (INA) states that those who have been ordered remove must stay outside of the United States for a specific amount of time before they may be readmitted. The length of the bar for reentry depends on the circumstances of the removal order. The bars to reentry are as follows:

  • 5-Year Bar for who were removed by summary exclusion or through removal proceedings initiated upon the alien’s arrival in the United States
  • 10-Year Bar for those ordered removed after a deportation hearing or who departed the United States while an order of removal was outstanding
  • 20-Year Bar for those being ordered removed for a second or more times

Permanent Bar for those who have a standing order of removal or, those who have been unlawfully present in the United States for over a year, have departed the United States, and then re-enter or attempt to re-enter the U.S. Those who have been charged with an aggregated felony also face a permanent bar regardless of past orders of removal.

The I-212 Consent to Reapply for Admission is available to anyone who faces a bar or is inadmissible after an Order of Removal was entered against them. Take note that those facing a permanent bar cannot file a I-212 wavier until 10 years have passed counting from the date they departed the United States. All others can file at any time after the removal order is or was issued. This includes those immigrants still in the United States.
Several factors weigh into the approval of an I-212 waiver. Factors such as family ties, hardship on “qualifying” U.S. citizen relatives, and criminal history. 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. An approved I-212 does not guarantee reentry, it only allows the alien to reapply for an immigrant visa and be admissible despite the bar. A consular officer can still deny such an applicant’s immigrant visa (IV) for independent reasons.

An important note for those ordered Removed In Absentia, the I-212 Consent to Reapply for Admission only waives bars resulting from a violation of Section 212(a)(9)(A)(i) and (ii) of the Act or INA. It does not apply to the 5 year bar applied under Section 212(a)(6)(B). Currently, there is no wavier for the 5 year bar resulting from an In Absentia order of removal. The alien will either have to wait the 5 years or seek other or collateral relief through the Immigration Court. This distinction is especially worthy of attention for those who may be eligible for 601A Waiver and Adjustment to immigrant status.

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