Sometimes a foreign national’s activity in the U.S. may lead to a removal order (also known as a deportation order). When the U.S. Government removes a person, she or he becomes inadmissible pursuant to INA § 212(a)(9)(A). An inadmissibility determination can prevent entrance into the U.S. for 5, 10, or 20 years. A section 212(a)(9)(A) determination can lead an immigration officer to deny a benefit request.  Fortunately, the U.S. Government allows removed persons to request consent to reapply for admission. If a person remains outside America for 5, 10, or 20 consecutive years after removal, the Department of Homeland Security (“DHS”) may grant permission to reapply for admission. See INA § 212(a)(9)(A)(iii); 8 C.F.R. § 212.2(a).

Must a Removed Person Prove that She or He Stayed Outside America?

Yes. If a removed person lived outside the U.S. for the 5, 10, or 20 years (“absence period”), the foreign national may request that DHS grant permission to reapply for admission.  The person must prove that she or he lived outside the U.S. for the required number of years.   

May a Person Apply for a Benefit Before the 5, 10, or 20 Years Required Absence Period?

Sometimes a person may qualify for an immigration benefit before living outside the U.S. for 5, 10, or 20 years. If the person wants to apply for an immigration benefit or enter the U.S., DHS must grant permission before the person reapplies for admission to the U.S.

If DHS Approved a 212(d)(3) Waiver, Does the Required Absence Period Still Apply?

Under some circumstances, DHS may approve an INA § 212(d)(3) inadmissibility waiver for a nonimmigrant beneficiary. When a deported person visits the U.S. pursuant to a section 212(d)(3) waiver, the person must fulfill the required absence period.

Does the Absence Requirement Apply to K-1, K-2, K-3, and K-4 Applicants?

Yes. In general, a U.S. citizen may file a petition for a removed fiancé or fiancée to obtain a K-1 visa. Similarly, an American citizen may file an I-130 petition for a removed spouse to obtain a K-3 visa. After USCIS approves the petition, USCIS must give its consent for the deported person to reapply for admission to the U.S. The embassy or consulate will accept the application and will forward the application to USCIS for review. See 8 C.F.R. § 212.2(c).      

Does an Applicant for Consular Processing or Adjustment Need to Obtain Consent to Reapply for Admission?

Yes. After USCIS approves a petition, a foreign national may apply for an immigrant visa at a U.S. consulate (“consular processing”). If physically present in the U.S., she or he may apply for permanent residency by filing the I-485 Form.

A removed person, intending to apply for an immigrant visa or adjustment, will need approval to reapply for admission if the person will apply for a benefit before completing the absence period. If applying for an immigrant visa through consular processing, a foreign national should wait for USCIS to approve the I-212 Form before departing the U.S.

A removed person may also file the I-212 Form at a port of entry by filing the Form with the DHS officer exercising jurisdiction over that port of entry.