It is a commonly misunderstood that an order of removal or deportation is tantamount to permanent banishment from the United States. While an order does bar an individual from re-entry, it does not necessarily mean that a person is forever banned from the United States. In some cases, an order prohibits re-entry for five years. In the vast majority of cases, however, an order bars admission for a period of ten years. The important thing to understand is that once an individual has spent the requisite period of time outside the United States, he or she will not be automatically barred from admission. Of course, there may likely be other grounds of inadmissibility that prohibit a person from coming, (e.g., unlawful presence, fraud, crimes), but the force of the removal order is attenuated and ultimately extinguished once the time period is over.
Now there may be situations in which an individual does not wish to spend the required time outside the United States before attempting to apply for admission. In that case, he or she will need to apply for "consent to reapply for admission to the United States after deportation or removal." This is done on Form I-212. This is a highly technical process that should not ordinarily be done alone or at least not without consulting an attorney first. But the benefit of securing approval of an I-212 is that an individual will be permitted to seek entry into the United States before the required time period imposed by the removal/deportation order has expired.
USCIS lists a number of factors, both positive and negative, that will be considered during the adjudication process. Some positive evidence that may warrant a favorable exercise of discretion include but are not limited to:
- Close family ties to the US
- Hardship to relatives with status in the US, yourself, or your employer
- Evidence of reformation and rehabilitation
- Length of lawful presence in the US
- Evidence of respect for law and order, good moral character, and family responsibilities
- Absence of significant undesirable or negative factors
- Eligibility for a waiver
- Likelihood that the person will become a lawful permanent resident in the future
On the other hand, there are factors that may militate against an approval. Some unfavorable things include:
- Evidence of bad moral character or conduct that may reflect poorly on your character
- Repeated violations of US immigration laws and a willful disregard for other laws
- Lack of close family ties or hardships
- Fraudulent marriage to obtain an immigration benefit
- Unauthorized employment in the US
- Lack of skills required for a position for which a labor certification could be issued
- Serious violations of US immigration laws and no evidence of rehabilitation or reformation
It is important to understand that getting an I-212 approved does not necessarily mean or guarantee an individual's admission to the US. An applicant still requires a petitioner, in most cases, and must demonstrate that he/she is not inadmissible to the US. As alluded to earlier, a deportation order may only be one of many grounds of inadmissibility. If there are issues which constitute inadmissibility, the individual must also overcome those grounds, even if an I-212 has been approved.
The above is general information only and not intended to serve as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.