Immigration

Returning to the U.S. After Deportation or Removal

By Ilona Bray, J.D., University of Washington Law School
If you were removed from the U.S. because you, for example, overstayed your visa, violated the terms of your status, or committed a serious crime (even if you had a green card), the United States expects you to remain outside its borders for some time to come. To that end, you will be considered "inadmissible" under U.S. immigration law, and thus not allowed to return to the U.S., for a number of years.

If you were removed from the U.S. because you, for example, overstayed your visa, violated the terms of your status, or committed a serious crime (even if you had a green card), the United States expects you to remain outside its borders for some time to come. To that end, you will be considered "inadmissible" under U.S. immigration law, and thus not allowed to return to the U.S., for a number of years.

Nevertheless, in some cases, usually where you have a separate basis upon which to apply for a visa or green card and receive a waiver, it is possible to return before those years are up, as described below.

In any case, you will absolutely need to the help of an experienced immigration attorney, to analyze your situation and help you apply for any future immigration benefits.

For How Long You Will Be Considered Inadmissible

Once you have been deported, the United States government will bar you from returning for five, ten, or 20 years, or even permanently. The exact length of time depends on the facts and circumstances surrounding your deportation. (Most deportees are barred for ten years.) For the details, see the Immigration and Nationality Act (I.N.A.) at Section 212(a)(9).

Who is barred for five years: If you were summarily removed or deported when you attempted entry at a U.S. border of other port, based upon a finding that you were inadmissible; or if you were removed or deported after having been placed in removal proceedings when you first arrived in the U.S.; or if you, without reasonable cause, failed or refused to attend or remain an immigration court proceeding or walked out before it was over; you may be barred from returning to the U.S. for five years.

Who is barred for ten years: If an immigration judge (IJ) ordered your removal at the conclusion of a hearing in Immigration Court (even if you did not attend the hearing), you are barred from return to the U.S. for ten years.

Who is barred for 20 years: If you were deported once before and then attempted to reenter the U.S. prior to the expiration of your ten-year period of inadmissibility, an Immigration Court judge could add an additional ten years to your original ten-year ban. (You could also be permanently barred from entering the U.S., as described next.)

Who is barred permanently:If you have been convicted of an aggravated felony, entered the U.S. without permission after being removed (deported), or illegally reentered the U.S. after having previously been in the U.S. unlawfully for more than one year, you may be permanently barred from entering the United States. This isn't quite as bad as it sounds, however, in that you are allowed to apply for a waiver of inadmissibility after ten years.

Your Old Basis for Being in the U.S. Is Gone

Just to be clear, there is no way to simply reverse your deportation. If you violated the terms of your visa, for instance, that visa has now been canceled. If you committed a crime, or did something else that makes green card holders deportable, you no longer have U.S. lawful permanent residence.

In rare cases, where there was a miscarriage of justice or new information has come to light, you may be able to have your case "reopened" or "reconsidered."

But more likely, if you plan or hope to come back to the United States, you will need to start from the beginning, by first finding a basis upon which you're eligible for an nonimmigrant (temporary) or immigrant (permanent) visa, and then determining whether you can overcome your inadmissibility in order to successfully apply for it.

Getting Special Permission to Re-Enter on an Immigrant Visa

If you wish to apply for admission to the U.S. as an immigrant while the deportation-based bar is still in effect, you may be able to arrange this by first completing USCIS Form I-212. Form I-212 is a request that the U.S. government lift the bar early and allow you to go forward with your visa application. Not everyone is allowed to use it; if, for example, you have committed murder or certain other crimes, this waiver is not open to you.

You will also need to submit various documents that explain and support your case, including records of your removal proceedings. These might be affidavits from people who know you, medical records, employment records, birth certificates of family members, and so on.

The I-212 instructions list a number of "favorable factors" that you should try to document in support of your case, such as evidence of close family ties in the U.S., hardship to your U.S. citizen or lawful permanent resident relatives or employer or to yourself, your reformation and rehabilitation, how long you were lawfully present in the U.S. and your immigration status during that time, your respect for law and order, your good moral character, your family responsibilities or intent to hold family responsibilities, the absence of significant undesirable or negative factors in your case, your eligibility for a waiver of other inadmissibility grounds, and the high likelihood that you will become a lawful permanent resident in the near future.

For where to file, see the USCIS Web page on “Direct Filing Addresses for Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.” You must also pay a fee.

If the USCIS decision is positive, you may next apply for an immigrant visa.

Requesting Additional Waivers With Your Immigrant Visa Application

If you were deported for certain reasons, such as for being unlawfully present in the United States or for committing a serious crime, Form I-212 will not be enough to get you back into the United States on an immigrant visa. You will also need to apply for a separate waiver of the ground(s) of inadmissibility created by the underlying act or problem.

This will likely involve proving that your being denied entry would cause "extreme hardship" to a close relative, such as a spouse, parent, or child, who is a U.S. citizen or permanent resident. Extreme hardship to yourself will not be considered. You will need to prepare a USCIS Form I-601 in requesting this separate waiver.

Applying for a Nonimmigrant Visa to the U.S. After Deportation

Even if you don't qualify for, or don't succeed in getting a waiver allowing you to get a U.S. green card, you may still be able to get a nonimmigrant (temporary) visa. For example, you might wish to apply for such a visa in order to visit or study in the United States.

Getting a waiver of your deportation or other grounds of inadmissibility is procedurally and legally easier for nonimmigrant visas than for immigrant visas. You will primarily be communicating with the U.S. embassy or consulate. The key will be showing that your presence would not harm U.S. interests. See an immigration attorney for details.

Illegal Re-Entry to the U.S. Is a Crime

If you were deported and you later re-enter the U.S. illegally, such as by sneaking across the border, you can be charged with a crime. If you have no previous criminal record, you can still be imprisoned for up to two years. If you do have a previous criminal record, you can be imprisoned for up to 20 years, depending on the seriousness of your previous crimes.

Questions for Your Immigration Lawyer

  • I was caught by immigration authorities before, and left on my own. Am I considered to have been deported?
  • New evidence has turned up showing that I didn't really commit the crime I was deported for. Can I do anything about this now?
  • USCIS denied my I-212 waiver. Can I try again?
  • I originally got my green card through my U.S. citizen wife. We are still married. Can I reapply for a green card based on this marriage?

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