Find out when and how someone can apply for a U.S. visa or green card, and return to the U.S., even after having been deported or removed.
Someone who has been removed or deported from the United States cannot apply for a new immigrant visa, nonimmigrant visa, adjustment of status, or other admission to the United States without complying with certain legal restrictions. For starters, the person must wait a set amount of time (five, ten, or 20 years) before applying for reentry, or else succeed in filing for a waiver of inadmissibility.
The Immigration and Nationality Act (I.N.A.) is the basic collection of immigration laws in the United States. I.N.A. 212 is the law defining the circumstances under which an alien may be inadmissible and the length of time an alien must wait before applying for reentry. Case law created by the immigration courts has further addressed the circumstances under which an alien may be granted a waiver of inadmissibility. Each case is considered based on its specific circumstances and some individuals will be allowed an opportunity to reenter the United States after removal while others may not.
Using Form I-212 to Request Reentry Following Removal
By filing USCIS Form I-212 (along with supporting documents and a fee), an alien can ask the U.S. government for permission to apply for entry before the required waiting time is complete. Form I-212 is called an "Application for Permission to Reapply for Admission into the United States after Deportation or Removal." You will need to support your application by showing numerous factors in your favor, such as family ties in the United States, your rehabilitation after any criminal violations, your good moral character and responsibility for a family, and more before you can return to the country.
An alien who left the U.S. voluntarily and was not legally removed or deported by the U.S. government can petition to reenter the U.S. without filing Form I-212.
Using Form I-601 to Request a Waiver of Inadmissibility
If you are separately inadmissible to the U.S. (on top of the time bar based on your prior removal), you may also need to submit USCIS Form I-601 along with your application for reentry. The name of this form is the "Application for Waiver of Grounds of Inadmissibility." Because there are many grounds for inadmissibility, the requirements for obtaining the waiver will vary depending on the reason you were removed.
Waivers Following Serious Offenses
Some people have a better chance than others of receiving waivers to reenter the United States. Getting a waiver following an aggravated felony is extremely difficult. Similarly, aliens accused of terrorist activity are not likely to receive a waiver of inadmissibility.
The term "aggravated felony" is defined in I.N.A. §101(a)(43). Among other things, the term includes offenses such as murder, sexual abuse of a minor, rape, drug trafficking, and illicit trafficking in firearms or destructive devices. An alien who is removed for an aggravated felony will be barred from reentering the United States for twenty years (even if removed only once).
What USCIS Considers Upon Receiving an Application for Reentry
There is no "typical" case for reentry, nor specific eligibility criteria you need to meet. Each case is considered based on its unique circumstances.
Two of the most important cases that establish a framework for the courts and USCIS to follow now are "In the Matter of Lee" and "In the Matter of Tin."
The USCIS Administrative Appeals office in In the Matter of Lee, 17 I. & N. Dec. 275, 277 (Comm. 1978) held that an immigration violation alone should not be reason for an alien to be denied reentry. The Commissioner explained that the waiver program is intended to provide aliens with "a second chance." The factors to be considered when deciding whether an alien should be given a second chance to enter the U.S. were outlined in the Matter of Tin, 14 I. & N. Dec. 371, 373-74 (RC 1974), as listed below:
a). Basis for removal, b). Length of time since the removal, c). Length of residence in the U.S. (only LEGAL residence can be considered), d). Moral character of the applicant, e). Applicant's respect for law and order, f). Evidence of reformation and rehabilitation, g). Family responsibilities of applicant, h). Inadmissibility to the U.S. under other sections of law, i). Hardship involved to the applicant and others, j). Need for the applicant's services in the U.S., k). Illegally Returning to the U.S. After Removal Is a Felony.
Under federal law (8 U.S.C. § 1325), anyone who enters the Unites States illegally is committing a misdemeanor and can be sentenced to a fine or to six months in prison. The law accompanying § 1325 is 8 U.S.C. § 1326, which makes the offense of reentering, or attempting to reenter the United States after being removed or deported, a felony offense. You will likely be permanently barred from the United States if you illegally reenter after a prior removal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.