A noncitizen who has been deported (removed) from the U.S. to another country is not supposed to attempt to reenter for five, ten, or 20 years, or even permanently. (The exact length of time depends on factors like the reason for removal and whether the person was convicted of a crime.) In immigration-law lingo, you are “inadmissible” for the prescribed length of time after being removed. It doesn’t matter whether the order of removal was issued in immigration court or by an officer at the airport or the border.
If you do come back to the U.S. without permission after a removal order, the order could be “reinstated,” which is a process that allows an immigration officer to send you back to the country to which you were previously deported without letting you see an immigration judge first. Additionally, you could be charged with the federal crime of illegal reentry. But as discussed below, you can, if you have separate grounds upon which to request U.S. entry, apply for permission to return to the United States.
Will my previous removal order definitely be reinstated?
Not necessarily. If you are caught by immigration authorities after reentering the U.S., they might instead choose to put you into removal proceedings again. There, you might have the option to apply for various forms of immigration “relief,” or ways to stay in the U.S. legally. For example, you might be eligible to apply for asylum or cancellation of removal.
What happens if I’m charged with illegal reentry?
If charged, you can elect to have either a federal public defender or a private criminal attorney represent you. You are entitled to a criminal trial, where you can plead guilty or not guilty. If convicted, you may be penalized with serving up to two years in federal jail, paying a fine, or both. At the end of serving your time (if any), you could be put into immigration court proceedings or removed through the previously mentioned reinstatement of removal by immigration authorities.
Is there any way I could legally enter the U.S. again before waiting the required number of years?
If you have a new or separate basis upon which to request a visa or green card -- for example, your brother is a U.S. citizen and your priority date has become current, or you’ve received a job offer as a tech worker and wish to apply for an H-1B visa -- you may apply to go forward with that application by submitting Form I-212, “Permission to Reapply For Admission Into the United States After Deportation or Removal.” This form, which is commonly referred to as a waiver request, allows you to ask the immigration authorities to overlook the inadmissibility based on your prior removal and give you a second chance.
Each I-212 request is considered on its own merits. You do not have to meet a specific standard, or have a qualifying relative in the United States. Before approving your I-212, the U.S. government official handling your case will look at factors such as the reason you were deported, how recently you were removed, the length of time you lived in the U.S., your moral character (or for which crimes, if any, you were convicted), your respect for law and order, evidence of rehabilitation (if you committed a crime), your family obligations, any other reasons that the government may refuse to admit you into the U.S., any hardship to yourself or others were the permission denied, and the need for any services you offer to the United States (for example, if you’ll be applying for a work visa).
When you file an I-212, you (or your lawyer) will need to submit a statement and documentation that address any of these factors that are relevant to the reason you were deported or your current life. The more factors you can show in your favor, the more likely it is that the I-212 application will be approved.
Who is eligible to submit a Form I-212 request?
Only certain categories of people can apply for the I-212, namely those who:
- were previously removed from the U.S. or ordered removed but voluntarily left the country, or
- have entered the U.S. unlawfully after a prior removal order or deportation or were present in the U.S. for at least one year without authorization by immigration authorities.
An example of someone entitled to file an I-212 would be a green card holder who received permanent residence through a U.S. citizen spouse and was deported due to having committed a crime. After being deported, the person can submit Form I-212 in connection with an application for a B-2 visitor visa.
Form I-212 may not be the only form you need to overcome your inadmissibility, however. If the reason you were deported makes you separately inadmissible -- beyond the inadmissibility created by the removal order itself -- you will have to also apply for an I-601 waiver, based on a separate set of eligibility standards. With this added complication, you may not be eligible to ever get your green card back.
The I-212 application should be made before you enter the United States. If the government says yes to your request, and also approves your visa or waiver application, you can enter the U.S. legally and do not have to worry about having your removal order being reinstated, or worse, being put in federal jail and/or fined.
Because the process for determining whether you are eligible to file an I-212 form is a complicated one, it is important to get professional help from an immigration attorney.