212(k) waiver for 212(a)(7)(A)(i)(I) 5 year bar

[MarcusZoe 1]

My wife and I have recently filed the I-130, and working towards the IR-1.  A year and a half ago, she was denied entry under section 212(a)(7)(A)(i)(I), and currently has a 5 year bar.

 

 

Inadmissibility Grounds	Inadmissibility Grounds INA reference	Waiver of Inadmissibility for Immigrant Visa	Waiver of Inadmissibility for Non-immigrant Visa
Documentation Requirement for Immigrants	212(a)(7)(A)	211 212(k)	N/A

 

 

211 – (Does not apply) 211 applies to those that actually had the correct visa, just didn’t have the paperwork.  211 is basically about getting back in to the US without the physical paperwork.

 

212(k) does apply in this situation – Code of Federal Regulations

 

Title 8 - Aliens and Nationality
Chapter I - DEPARTMENT OF HOMELAND SECURITY
Subchapter B - IMMIGRATION REGULATIONS
Part 212 - DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
Section 212.10 - Section 212(k) waiver.

 

§ 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011]

 

I'm assuming, we should not have an issue receiving the Visa, however, once she gets to the port of entry, she will need to request a 212(k) waiver.

 

Does anyone have any experience with this process?

 

Is there anyway to get a better understanding of the form/process?  And, if there are any reasons they would deny it at that point?

[Boiler 45,931]

She does not have an immigrant visa? She will need an I 212.

[aaron2020 11,651]

Your wife will not be getting a visa.

What happened when your wife was denied entry and deported?

 

Your wife was found inadmissible.   Inadmissibility means she is not allowed into the US.  Therefore, the US Embassy can not issue her a visa.

 

You need to apply for and get the I-212 waiver before your wife will be eligible for a visa.

 

 

 

 

[MarcusZoe 1]

1 hour ago, Boiler said:

She does not have an immigrant visa? She will need an I 212.

We are currently working on the I 130 to get the IR1.  For most of the 212 inadmissible, you need to go through the 212 and 601 waiver process.  However, for (INA 212(a)(7)(A)) (which is the section under which she was refused entry.  Basically,  she was entering on a visitors visa, however,they felt she was attempting to immigrate), and subsequent sections, the following waiver process is followed.

212(a)(7)(A)(i

No waiver is available at time of visa application. However, under INA 212(k), DHS may waive this inadmissibility for an Immigrant visa holder at the port of entry.

 

My question is specifically, does anyone have any experience with the port of entry(DHS) waiver process? Specifically as pertaining to section 212(k)

§ 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011]

[Boiler 45,931]

She can get a visa without a waiver or waiting out the 5 years.

[Ontarkie 14,394]

~~Moved to Waivers from CR1/IR1 Progress Reports.~~

[MarcusZoe 1]

58 minutes ago, Boiler said:

She can get a visa without a waiver or waiting out the 5 years.

Correct, however the process that she will go through, when entering the US seems very ambiguous, it just states that she will be able to apply for a waiver at the port of entry.  But, it doesn't give a form ID, or if there are any issues that we can know ahead of time.  From what I have read, is that it is the agents discretion(certainly there is more to it than that)

[Boiler 45,931]

1 hour ago, Boiler said:

She can not get a visa without a waiver or waiting out the 5 years.

 

 

Oops typo

[aaron2020 11,651]

9 minutes ago, MarcusZoe said:

Correct, however the process that she will go through, when entering the US seems very ambiguous, it just states that she will be able to apply for a waiver at the port of entry.  But, it doesn't give a form ID, or if there are any issues that we can know ahead of time.  From what I have read, is that it is the agents discretion(certainly there is more to it than that)

Have you looked at the I-212 instructions?   

What happened when your wife was found inadmissible and deported?

 

Noticed that you only responded to the erroneous post that had the answer you wanted.  You haven't even addressed that I told you that your wife will need the I-212 waiver before she can file for another visa.  Don't believe that at your own peril.  

Edited April 18, 2019 by aaron2020

[MarcusZoe 1]

20 minutes ago, aaron2020 said:

Have you looked at the I-212 instructions?   

What happened when your wife was found inadmissible and deported?

 

Noticed that you only responded to the erroneous post that had the answer you wanted.  You haven't even addressed that I told you that your wife will need the I-212 waiver before she can file for another visa.  Don't believe that at your own peril.  

 

Thank you for your responses, it prompted more research.  and prompted an additional question.  Is there a section that tracks the processing time for the I-212 filed at a field office?  Also, because I don't need the waiver up front. can the I-212 be filed before the interview?

 

I understand that I will need to file the I-212(The I-212 is only a consent to re-apply), however I will not need to file for a waiver at that time, and I can file I-212 directly with the USCIS Field Office, because it does not require the I-601. https://www.uscis.gov/forms/direct-filing-addresses-form-i-212-application-permission-reapply-admission-united-states-after-deportation-or-removal

 

Here is what I said about her being found inadmissible. More specifically, INA 212(a)(7)(A)(i)(I) and she was returned to Argentina.

1 hour ago, MarcusZoe said:

(INA 212(a)(7)(A)) (which is the section under which she was refused entry.  Basically,  she was entering on a visitors visa, however, they felt she was attempting to immigrate)

I posted information directly from Code of Federal Regulations and DOS Foreign Affairs Manual, that explains the waiver portion.

 

From Code of Federal Regulations: https://www.govinfo.gov/app/details/CFR-2012-title8-vol1/CFR-2012-title8-vol1-sec212-10

§ 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011]

 

From DOS FAM:

https://fam.state.gov/FAM/09FAM/09FAM030502.html

9 FAM 305.2-1(B)  Documentation Requirements for Immigrants - INA 212(a)(7)(A)

(CT:VISA-704;   10-29-2018)

a. No Waiver Available:  No waiver is available at the time of visa application.  However, under INA 212(k), the Department of Homeland Security may waive this inadmissibility for an immigrant visa holder at the port of entry.

b. Additional Information: For additional information on INA 212(a)(7)(A) see 9 FAM 302.1-3.

 

I understand that she will need a waiver, however in this case, the waiver is applied for at the port of entry, and is either approved or denied immediately by the DOS agent.  I'm just trying to figure out more about that part of the process.

 

Here are a couple of links that have a good chart as to what type of waiver is used for the different types of inadmissibility.

http://www.smartimmigrationlawyer.com/inadmissibility-waivers/

https://tnimmigration.com/212a-inadmissibility-grounds-waiver-of-inadmissibility/

https://www.shusterman.com/green-card-waivers/

 

 

 

 

[belinda63 3,041]

It is my understanding that she will not be issued a visa until the waiver is approved. 

[Boiler 45,931]

Unlike I 601 you can apply for a 1 212 prior to the interview.

 

Certainly used to be that there was no tracking system, I am not aware that had changed.

 

I 212 covers a variety of situations, certainly I am not familiar with all of them but seems one of them applies to somebody with an Immigrant Visa - Any applicant for admission who is in possession of an immigrant visa

 

Not applicable in your situation as you do not have one and will not get one with the bar applying..

 

 

[geowrian 22,338]

She is barred for the 5 years. She cannot be issued an immigrant visa during that period, unless the bar is waived.

Any talk of applying for a waiver at POE is pointless here since she has no immigrant visa right now and she cannot be issued the visa as-is.

 

She needs to file an I-212 and have it approved, or to wait out the 5 year bar. Only then can they issue the immigrant visa, assuming she is determined to be otherwise eligible for it.

[aaron2020 11,651]

Why bother coming to an immigration site for help when you already have the answers?   Why bother asking for help when you will not listen?

 

It's incredible that you think the US Embassy will grant your wife an immigration visa when she is inadmissible and has a 5 years bar.   Everyone with years of immigration experience has told you that is not going to happen.  But keep insisting she can get an immigration visa, you'll do great.    

Edited April 19, 2019 by aaron2020

[MarcusZoe 1]

29 minutes ago, aaron2020 said:

Why bother coming to an immigration site for help when you already have the answers?   Why bother asking for help when you will not listen?

 

It's incredible that you think the US Embassy will grant your wife an immigration visa when she is inadmissible and has a 5 years bar.   Everyone with years of immigration experience has told you that is not going to happen.  But keep insisting she can get an immigration visa, you'll do great.    

What is your purpose in attempting to belittle someone that is in search of better understanding.  Most of the process, I believe that I understand fine.  I'll out line it below, and if anything is incorrect, I would like to know.  If nothing else, forum conversations like this my help others looking for the same information.  So far, nobody has been able to answer my original question, which is fine, if nobody has had experience with it.  I've posted excerpts from the law, and you tell me it's wrong.  If that's the case, can you point me in the right direction?  Though I appreciate the responses, I only posted most of the above to better explain what/why I was asking my original question.  And I also thought it might be helpful to others.

 

Step 1.  Anyone found inadmissible to the US under provisions of section 212(a), and specifically as it pertains to in proceedings under section 235(b)(1), must file form I 212. (This is NOT a waiver form.  it is only a request for consent to reapply for admission to the US.)  There are multiple methods of filing this form.  For us, based on the instructions of for I 212, we have to file it with the USCIS Field Office.

 

Step 2.  Once the above is approved, the Visa can be approved, however the actual bar has not been addressed to this point, and still requires the waiver process outlined below.

 

Step 3.  Depending on the what subsection of 212(a) (In our case, 212(a)(7)(A)(i)(I) ) determines what the waiver process is.  For this subsection, the law states "§ 212.10 Section 212(k) waiver. Any applicant for admission who is in possession of an immigrant visa, and who is inadmissible under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act. If the application for waiver is denied, the application may be renewed in removal proceedings before an immigration judge as provided in 8 CFR part 1240. [76 FR 53787, Aug. 29, 2011]

 

Waiver: for subsection 212(a)(7)(A)(i) - No Waiver Available:  No waiver is available at the time of visa application.  However, under INA 212(k), the Department of Homeland Security may waive this inadmissibility for an immigrant visa holder at the port of entry."

 

My original question relates to the portion from the above.  "~under section 212(a)(5)(A) or 212(a)(7)(A)(i) of the Act, may apply at the port of entry for a waiver under section 212(k) of the Act:"  and "Department of Homeland Security may waive this inadmissibility for an immigrant visa holder at the port of entry"

 

I was only asking if anyone had any experience with this specific process, as it seems very ambiguous.