[Code of Federal Regulations]

[Title 8, Volume 1]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 8CFR212.2]



[Page 189-191]

 

                     TITLE 8--ALIENS AND NATIONALITY

 

               CHAPTER I--DEPARTMENT OF HOMELAND SECURITY

 

PART 212_DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION 

OF CERTAIN INADMISSIBLE ALIENS; PAROLE--Table of Contents

 

Sec. 212.2  Consent to reapply for admission after deportation, 

removal or departure at Government expense.



    (a) Evidence. Any alien who has been deported or removed from the 

United States is inadmissible to the United States unless the alien has 

remained outside of the United States for five consecutive years since 

the date of deportation or removal. If the alien has been convicted of 

an aggravated felony, he or she must remain outside of the United States 

for twenty consecutive years from the deportation date before he or she 

is eligible to re-enter the United States. Any alien who has been 

deported or removed from the United States and is applying for a visa, 

admission to the United States, or adjustment of status, must present 

proof that he or she has remained outside of the United States for the 

time period required for re-entry after deportation or removal. The 

examining consular or immigration officer must be satisfied that since 

the alien's deportation or removal, the alien has remained outside the 

United States for more than five consecutive years, or twenty 

consecutive years in the case of an alien convicted of an aggravated 

felony as defined in section 101(a)(43) of the Act. Any alien who does 

not satisfactorily present proof of absence from the United States for 

more than five consecutive years, or twenty consecutive years in the 

case of an alien convicted of an aggravated felony, to the consular or 

immigration officer, and any alien who is seeking to enter the United 

States prior to the completion



[[Page 190]]



of the requisite five- or twenty-year absence, must apply for permission 

to reapply for admission to the United States as provided under this 

part. A temporary stay in the United States under section 212(d)(3) of 

the Act does not interrupt the five or twenty consecutive year absence 

requirement.

    (b) Alien applying to consular officer for nonimmigrant visa or 

nonresident alien border crossing card. (1) An alien who is applying to 

a consular officer for a nonimmigrant visa or a nonresident alien border 

crossing card, must request permission to reapply for admission to the 

United States if five years, or twenty years if the alien's deportation 

was based upon a conviction for an aggravated felony, have not elapsed 

since the date of deportation or removal. This permission shall be 

requested in the manner prescribed through the consular officer, and may 

be granted only in accordance with sections 212(a)(17) and 212(d)(3)(A) 

of the Act and Sec. 212.4 of this part. However, the alien may apply 

for such permission by submitting Form I-212, Application for Permission 

to Reapply for Admission into the United States after Deportation or 

Removal, to the consular officer if that officer is willing to accept 

the application, and recommends to the district director that the alien 

be permitted to apply.

    (2) The consular officer shall forward the Form I-212 to the 

district director with jurisdiction over the place where the deportation 

or removal proceedings were held.

    (c) Special provisions for an applicant for nonimmigrant visa under 

section 101(a)(15)(K) of the Act. (1) An applicant for a nonimmigrant 

visa under section 101(a)(15)(K) must:

    (i) Be the beneficiary of a valid visa petition approved by the 

Service; and

    (ii) File an application on Form I-212 with the consular officer for 

permission to reapply for admission to the United States after 

deportation or removal.

    (2) The consular officer must forward the Form I-212 to the Service 

office with jurisdiction over the area within which the consular officer 

is located. If the alien is ineligible on grounds which, upon the 

applicant's marriage to the United States citizen petitioner, may be 

waived under section 212 (g), (h), or (i) of the Act, the consular 

officer must also forward a recommendation as to whether the waiver 

should be granted.

    (d) Applicant for immigrant visa. Except as provided in paragraph 

(g)(3) of this section, an applicant for an immigrant visa who is not 

physically present in the United States and who requires permission to 

reapply must file Form I-212 with the district director having 

jurisdiction over the place where the deportation or removal proceedings 

were held. Except as provided in paragraph (g)(3) of this section, if 

the applicant also requires a waiver under section 212 (g), (h), or (i) 

of the Act, Form I-601, Application for Waiver of Grounds of 

Excludability, must be filed simultaneously with the Form I-212 with the 

American consul having jurisdiction over the alien's place of residence. 

The consul must forward these forms to the appropriate Service office 

abroad with jurisdiction over the area within which the consul is 

located.

    (e) Applicant for adjustment of status. An applicant for adjustment 

of status under section 245 of the Act and part 245 of this chapter must 

request permission to reapply for entry in conjunction with his or her 

application for adjustment of status. This request is made by filing an 

application for permission to reapply, Form I-212, with the district 

director having jurisdiction over the place where the alien resides. If 

the application under section 245 of the Act has been initiated, 

renewed, or is pending in a proceeding before an immigration judge, the 

district director must refer the Form I-212 to the immigration judge for 

adjudication.

    (f) Applicant for admission at port of entry. Within five years of 

the deportation or removal, or twenty years in the case of an alien 

convicted of an aggravated felony, an alien may request permission at a 

port of entry to reapply for admission to the United States. The alien 

shall file the Form I-212 with the district director having jurisdiction 

over the port of entry.

    (g) Other applicants. (1) Any applicant for permission to reapply 

for admission under circumstances other than those described in 

paragraphs (b) through (f)



[[Page 191]]



of this section must file Form I-212. This form is filed with either:

    (i) The district director having jurisdiction over the place where 

the deportation or removal proceedings were held; or

    (ii) The district director who exercised or is exercising 

jurisdiction over the applicant's most recent proceeding.

    (2) If the applicant is physically present in the United States but 

is ineligible to apply for adjustment of status, he or she must file the 

application with the district director having jurisdiction over his or 

her place of residence.

    (3) If an alien who is an applicant for parole authorization under 

Sec. 245.15(t)(2) of this chapter requires consent to reapply for 

admission after deportation, removal, or departure at Government 

expense, or a waiver under section 212(g), 212(h), or 212(i) of the Act, 

he or she may file the requisite Form I-212 or Form I-601 at the 

Nebraska Service Center concurrently with the Form I-131, Application 

for Travel Document. If an alien who is an applicant for parole 

authorization under Sec. 245.13(k)(2) of this chapter requires consent 

to reapply for admission after deportation, removal, or departure at 

Government expense, or a waiver under section 212(g), 212(h), or 212(i) 

of the Act, he or she may file the requisite Form I-212 or Form I-601 at 

the Texas Service Center concurrently with the Form I-131, Application 

for Travel Document.

    (h) Decision. An applicant who has submitted a request for consent 

to reapply for admission after deportation or removal must be notified 

of the decision. If the application is denied, the applicant must be 

notified of the reasons for the denial and of his or her right to appeal 

as provided in part 103 of this chapter. Except in the case of an 

applicant seeking to be granted advance permission to reapply for 

admission prior to his or her departure from the United States, the 

denial of the application shall be without prejudice to the renewal of 

the application in the course of proceedings before an immigration judge 

under section 242 of the Act and this chapter.

    (i) Retroactive approval. (1) If the alien filed Form I-212 when 

seeking admission at a port of entry, the approval of the Form I-212 

shall be retroactive to either:

    (i) The date on which the alien embarked or reembarked at a place 

outside the United States; or

    (ii) The date on which the alien attempted to be admitted from 

foreign contiguous territory.

    (2) If the alien filed Form I-212 in conjunction with an application 

for adjustment of status under section 245 of the Act, the approval of 

Form I-212 shall be retroactive to the date on which the alien embarked 

or reembarked at a place outside the United States.

    (j) Advance approval. An alien whose departure will execute an order 

of deportation shall receive a conditional approval depending upon his 

or her satisfactory departure. However, the grant of permission to 

reapply does not waive inadmissibility under section 212(a) (16) or (17) 

of the Act resulting from exclusion, deportation, or removal proceedings 

which are instituted subsequent to the date permission to reapply is 

granted.



[56 FR 23212, May 21, 1991, as amended at 64 FR 25766, May 12, 1999; 65 

FR 15854, Mar. 24, 2000]