Do I need a Form I-212 waiver?

QUESTION:  I am Brazilian and I have been dating my fiancé for 3 years now. We are very in love and our wedding is next month.  My fiancé is an American citizen and he will file an I-130 form right after the wedding; he will also file Form I-129F for the K3 visa since we understand that will get us together faster. The issue is that I am in Brazil and he is in California and because I have been removed from the US two years ago, I can not travel to the US and stay with him until this process is over. Now we wonder if I am going to need a Form I-212 and how exactly does it work. Do we file the form I-212 at the same time that we file the form I-129f? How long does it take for an answer? Is that the appropriate form to file? 

REPLY:  Based upon the information provided, it sounds as though you will almost certainly require an I-212 waiver in order to return to the U.S.  The more important issue, however, may be the need for a waiver to overcome the reason why you were removed.  For example, if you were removed due to an overstay for more than 6 months, for a criminal conviction, or for committing fraud in connection with an immigration application, you will require another waiver (Form I-601) in addition to Form I-212.   

I would also like to point out to you and your fiancé that the I-129F petition for a K3 visa is currently taking just as long to process as the I-130 petition.  In our recent experience, visa applicants are not getting to the U.S. any faster with the K3 petition than the I-130 petition.  You should also know that if the Consulate receives notice of approval of your I-130 petition before your K3 visa interview occurs, you will no longer be permitted to apply for the K3 visa and must proceed with the I-130/immigrant visa process.  

The I-212 waiver (and any other required waivers) will be submitted to the U.S. Consul at the visa interview.  The Consul does not adjudicate these waiver applications.  The Department of Homeland Security (“DHS”) retains jurisdiction over the adjudication of nearly all waivers.  The Consular officer, however, must review the waiver applications and determine whether s/he feels as though the application is worthy of recommending for approval to the DHS.  Your waiver application(s) must obtain the recommendation of the Consulate in order to even reach the DHS for adjudication.  For this reason, it is extremely important to have a strong waiver application to present at the Consulate during your interview. 

If you would like to submit the documents regarding your removal and receive a complete professional analysis, please consider contacting my office to set up a consultation.