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Can I File for A Provisional Waiver If I Have an Order? | Filing I-212 and I-601A

| Jan 22, 2018 | I-212, I-601A

For more than a year now, individuals with previous removal and deportation orders looking to reopen their cases so that they can pursue I-601A provisional waivers have been facing stiff opposition from government counsel. The Office of Chief Counsel has virtually instituted a blanket policy of refusing to join in motions to reopen, or if a case is already pending, refusing to consent to administrative closure so that the respondent can pursue a provisional waiver. In practical terms, this posture has critically impaired the ability of individuals to fix their immigration status and disheartened a good part of the population from even trying-which was probably the intended effect in the first place. In some cases, especially if the Immigration Court does not flex its own judicial authority, an individual’s seeking to pursue permanent residence in the face of an outstanding, unexecuted removal or deportation order should consider exploring the I-212 with counsel. Under the final iteration of the I-601A, which took effect in August of 2016, those subject to final orders of removal, deportation, or exclusion may now apply for the provisional waiver, provided, of course, that certain eligibility requirements are met.

What is the I-212?

The I-212 is the application that technically requests permission to reapply for admission into the US after Deportation or Removal. Within the above context, the person who is still inside the US is specifically asking for conditional approval of the application. The person still needs the depart the US in order for the approved I-212 to take effect, namely, eliminating the automatic bars to admission that are also triggered by the departure (since the order is not technically executed unless and until the person leaves). Without approved consent to apply for readmission, some of the automatic bars include the following:

· 10 years from the date of departure or removal, if only removed once

· 20 years from the date of departure or removal, if removed two or more times

· Forever, if convicted of an aggravated felony.

In other words, once a person departs the US, the removal order is executed. Once executed, the person can not even try to try to come back to the US until the appropriate time has passed-unless an I-212 approval is secured. Therefore, an I-212 may open the door for a person with an order to still immigrate to the US.

Pursuing the I-601A

Once the I-212 is approved, the individual has only made it half way through. Remember, the I-212 only absolves the automatic bars to applying for admission. It does not cure other problems of inadmissibility, such as unlawful presence. That, of course, is where the I-601A provisional waiver would come in. Upon a requisite showing of extreme hardship to a USC/LPR spouse or parent, an approved I-601A would prospectively cancel the 3 or 10-year unlawful presence bar. This conditional approval would give the applicant some relative peace of mind prior to departure that the unlawful presence bar issue has already been addressed (vs. the uncertainty of leaving first and then having to apply for waiver from outside the US).

At the risk of oversimplifying things, the I-212 addresses the removal order and the I-601A addresses the unlawful presence bar -two major obstacles that would otherwise prevent a person from immigrating for at least 10 years. It is important to keep in mind, however, that these grants are only conditional in nature. They are premised on the person ultimately departing the US. Furthermore, the I-212 only allows a person to apply for admission (in other words, ask); it does not, in and of itself, grant admission. Therefore, the applicant will need to demonstrate that a visa is available and that he/she qualifies for it, or put another way, is not inadmissible. Unlawful presence is only one of several bars. If the person has a criminal or fraudulent misrepresentation issue, the I-601A will be of little utility. Not only will the I601A be revoked, the person will need to file for a new waiver, if applicable, from outside the US. This is an exceedingly complicated area of immigration law. The article only illustrates one possible permutation of some of the available means/methods being used to negotiate the current impasse with the government and its policies. It should not be taken or construed as legal advice. If you need legal help, you should speak with an immigration attorney to receive individual legal advice regarding your specific situation. 

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