Filing Form I-212 at a U.S. Consulate

QUESTION:  I am writing in behalf of a friend of mine (Italian) living in Italy that is confused about the process of filing a Form I-212.  The fact is that she was refused admission to the United States back in January 2008 at the Newark Airport because she had previously overstayed a tourist visa in 2006-2007.  The reason that was given for her refusal and written on her passport was: "Inadmissible under section 212(a)(7)(A)(i)(I)."  

Do you believe that it will be possible to file a Form I-212 directly here in the United States and to apply for a B1/B2 visa in Italy?  Thanks in advance for any help. 

REPLY:  I am sorry to hear of your friend’s unfortunate immigration situation.  I have provided some information below that will hopefully shed some light on the situation for you.  Without more specific information about your friend, however, I am afraid that I cannot provide you with a specific recommendation or analysis. 

A Form I-212 waiver is also called an application for permission to reapply for admission into the U.S. after deportation or removal.  As the title suggests, only those individuals who have been ordered removed or deported from the U.S. must apply for the Form I-212 waiver.  This applies if you are ordered removed or deported by an Immigration Judge.  It also applies if you were subject to expedited removal by U.S. Customs and Border Protection (“CBP”) officials at a port of entry.  If your friend was expedited removed, she would have been issued Form I-860, Notice and Order of Expedited Removal.  If she was not issued this form, she was probably granted permission to withdraw her application for admission.  If this was the case, then she should not require the Form I-212 waiver. 

It sounds as if your friend will most likely require a waiver pursuant to INA § 212(d)(3), which is required in order to waive her inadmissibility due to her previous overstay if it amounted to an accumulation of unlawful presence. 

Both of these waiver applications are submitted at the time of the B1/B2 visa application at the U.S. Consulate in Italy.  What normally happens for our clients is that we prepare the visa and waiver applications in advance.  Upon completion, we send them to our client abroad with instructions to make a visa appointment.  The applicant then attends the visa appointment where s/he is initially denied the visa due to the relevant grounds of inadmissibility.  After the initial denial, the applicant presents the waiver application packages to the Consular officer.  The Consular officer must then review and determine whether s/he wants to recommend the waiver for approval to the Department of Homeland Security (“DHS”).  Although the DHS is the agency that has the power to grant or deny the waiver application, the Consular officer must recommend the waivers for approval before they will even be sent to the DHS.  Following recommendation, the DHS can take anywhere from a couple of weeks to several months to issue a decision.  Once the DHS decision is returned to the Consular officer, the applicant is notified by the Consulate and, if the decision is favorable, a visa is issued. 

Again, without more specific information about your friend’s case, I cannot provide a specific analysis.  If you would like to submit additional information about your friend’s particular case and receive a complete professional analysis, I suggest calling our office to set up a consultation.