Individuals Previously Removed

An alien who has been ordered removed is inadmissible for at least 5 years.  If the individual left the United States without allowing the removal to occur, he or she is inadmissible for 10 years.  If the individual has a second removal order, he or she is inadmissible for 20 years.  If the alien was convicted of an aggravated felony, he or she is inadmissible for 20 years.

In order to obtain a waiver for an immigrant visa, the immigrant visa applicant will technically request that the Attorney General consent to the alien’s reapplying for admission.  This procedure is done through an I-212 Waiver for Reapplication for Admission.  There are a number of factors that are considered under this waiver, including:

• Proof of the applicant’s good moral character;
  
• The recency of the removal;
  
• Then need for the applicant’s services in the U.S.;
  
• Length of time the applicant had been in the U.S.
  

The I-212 waiver is not available for 5 years for applicants who were subject to a final order of removal in absentia.

Unlawful Presence

If an alien was unlawfully present in the United States for a period of more than 180 days but less than 1 year, he or she will be inadmissible for 3 years upon the date of departure.  If the individual was unlawfully present for more than one year before leaving the United States, he or she will be inadmissible for 10 years.  (There are limited exceptions to this rule.)  Significantly, if an immigrant visa applicant is in the United States and his or her sole reason for being inadmissible is unlawful presence, he or she may submit a provisional waiver application in the U.S.

If a person has been unlawfully present for an aggregate period of more than one year or has been ordered removed, then attempts to enter or has entered without inspection is inadmissible.  This is a particularly serious offense, as the individual will be permanently barred from entering the U.S., and will not be able to submit a waiver application (whether for a nonimmigrant or immigrant visa) until he or she has been physically outside the U.S. for 10 years.

As with most other grounds of inadmissibility, a nonimmigrant visa applicant with either a prior removal order or unlawful presence may submit a 212(d)(3) waiver.