We have seen in a previous article the consequence of illegally re-entering the U.S. after having been removed. Illegal re-entry must never be an option. Such drastic action is driven by desperation and lack of information. Removal and its resulting ban on re-entry for certain periods do not necessarily inspire hopes of ever returning to U.S. by legal means. However, there are legal options available to aliens who have been removed. Let’s examine some of these.
The first option would be to apply for an immigrant visa and apply for consent to reapply for admission pursuant to INA 212(a)(9)(A)(iii), which is more commonly known as a Form I-212.
An alien can legally enter the U.S. by means of a visa or by parole. Visas may either be immigrant or nonimmigrant. The first step for an alien who was removed and who wishes to return to the U.S. is to apply for a visa in much the same way as any other alien who seeks to enter the U.S. would. A visa applicant must essentially show that: (1) he meets the requirements for a particular visa category; and (2) he is not inadmissible or disqualified from getting a visa. Under INA 212(a)((9)(A), an alien who was previously removed is inadmissible for a certain period depending on the circumstances.
For example, an alien who was removed by expedited removal at the port of entry is inadmissible for 5 years from the date of removal and is barred from returning within this period of inadmissibility. An alien who was ordered removed by an Immigration Judge after removal proceedings is inadmissible and barred for 10 years. An alien who was removed due to a conviction for an aggravated felony is barred forever. A prohibition like this lifetime ban on aggravated felons is the stuff that destroys all hopes and motivates people to try even illegal means to return to their families in the U.S. but it should not be so.
Once a consular officer determines that an immigrant visa applicant is inadmissible under INA 212(a)((9)(A), he would require the applicant to file a Form I-212. In a Form I-212, the alien must show that he has sufficient favorable factors that could outweigh the unfavorable factors in his case. Approval of the application would depend on USCIS’s discretion.
Some favorable factors that USCIS would consider include: close family ties in the U.S.; unusual hardship to the applicant or to his lawful permanent resident or U.S. citizen relatives; length of lawful residence in the U.S.; respect for law and order; good moral character; considerable passage of time since removal; removal for less serious reasons; or absence of significant undesirable or negative factors.
Some unfavorable factors include: moral depravity; criminal tendencies; repeated violations of immigration laws; serious violations of immigration laws which show a callous attitude; willful disregard for other laws; previous instances of fraud in dealings with USCIS; false testimony; or unauthorized employment.
The second option for an alien who wants to return after removal would be to apply for a nonimmigrant visa and apply for a waiver under INA 212(d)(3)(A). Not everyone would have relatives in the U.S. who could petition them for immigrant visas. So those who cannot obtain immigrant visas but would want to visit the U.S. for valid reasons may choose this second option.
An INA 212(d)(3)(A) waiver is decided by considering factors such as: how recent and serious was the cause of the alien’s inadmissibility; the reasons for the proposed travel to the U.S.; and the positive or negative effect of the planned travel to the U.S.
However, an INA 212(d)(3)(A) waiver does not require some qualifying family relationship or the passage of some specified amount of time. It is not limited to humanitarian or other exceptional cases. It is granted based on discretion for any legitimate purpose. If granted, an INA 212(d)(3)(A) waiver would be valid for a specified number of visits and for a period that would not exceed 5 years. Unlike a Form I-212, an INA 212(d)(3)(A) waiver does not permanently relieve an alien from inadmissibility.
If both a Form I-212 and an INA 212(d)(3)(A) waiver are available to an alien, how should he decide which option to take? This would depend on the alien’s circumstances and his objectives.
For example, if an alien’s positive factors are not as strong as he would want them to be, it might be a good idea to file an INA 212(d)(3)(A) waiver since this waiver could cover less exceptional cases. Also, if an alien’s planned travel to the U.S. is limited to a specific purpose such as a medical emergency or a single event which is not likely to recur such as a funeral, an INA 212(d)(3)(A) waiver might be a better option.
Since both an INA 212(d)(3)(A) waiver and a Form I-212 are discretionary applications, approval of either application is never guaranteed. Nevertheless, you would be given enough opportunity to argue your case and you could substantially increase your chances by making a thorough and well-documented presentation.
