Consent to Reapply for Admission

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. Similarly, a section 212(a)(9)(A) determination can lead an immigration officer to deny a benefit request.  

The U.S. Government does show mercy. If a removed person remains outside America for 5, 10, or 20 consecutive years after the removal date, the Department of Homeland Security (“DHS”) may approve a removed person’s request for 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”), she or he may request that DHS grant permission to reapply for admission.  The removed 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 removed person may qualify for an immigration benefit before living outside the U.S. for 5, 10, or 20 years. If the removed person wants to apply for a visa, other benefit, or enter the U.S., she or he must receive permission from DHS before reapplying 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, she or he must still fulfill the required absence period.

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

Yes. A U.S. citizen may file a petition for a removed fiancé or fiancée to obtain a K-1 visa. Similarly, a U.S. 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 beneficiary 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. embassy or consulate (“consular processing”). If physically present in the U.S., she or he may apply for permanent residency by filing the I-485 adjustment application.

A removed person, intending to apply for an immigrant visa or adjustment, will need approval to reapply for admission if she or he 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.