There are several reasons why non-citizens may have found themselves in deportation (removal) proceedings, including failure to obey the terms of a visa, failure to advise United States Citizenship and Immigration Services (USCIS) of change of address, commission of a crime, violation of immigration laws and the need to receive public assistance. For whichever reason, an individual has been ordered removed and left the U.S., is there any way for this person to return to the U.S. after being deported?

The answer is yes; however, there will be difficult challenges with obtaining permission to return to the U.S. that are best dealt with by finding an experienced immigration lawyer. For an individual to do so, he or she will need an approved visa petition and a waiver of inadmissibility. If the individual is seeking permanent residence in the U.S., he or she would need to apply for an immigrant visa (green card).

VISA PETITIONS

The two ways an individual interested in returning to the U.S. can obtain an immigrant visa are through family-based immigration and employment-based immigration. Family-based immigration can be applicable to this individual if he or she has a sponsoring relative willing to file a petition on their behalf.  If the sponsoring relative is a U.S. citizen, they may be the individual’s spouse, son or daughter over the age of 21, parent, brother or sister. In the instance that the sponsoring relative is a Legal Permanent Resident (LPR), he or she may petition for a spouse (husband or wife), unmarried children under 21 or unmarried son or daughter of any age. For those who are engaged to a U.S. citizen, the individual’s fiancé(e) may also file a petition for a K-1 visa, which is a non-immigrant visa, but hold many of the same requirements.

Family-based immigration petitions are based on a preference system. In other words, the closer the familial relationship, the shorter the waiting period someone has to wait for a visa, with other factors also at hand, such as the country of origin. Spouses and children of U.S. citizens, or the parent of a U.S. citizen who is 21 or older, looking to return to the U.S. may find that the wait time after the petition is filed is shorter than those who fall under the other sponsoring relative categories.

There are five categories an individual may fall under in order to apply for employment-based immigration, which are priority workers (includes those who meet extraordinary ability standards such as outstanding professors and researchers, multinational managers or executives); professionals with advanced degrees or exceptional ability in the sciences, arts, or business; certain immigrants who fall under distinct categories (including religious workers and foreign medical workers); skilled and unskilled workers; and foreign investors. For all of these categories, the individual’s employer must first submit a petition to the USICS and — for certain categories — the Department of Labor.

WAIVERS OF INADMISSIBILITY

Individuals who have been ordered deported and left the U.S. — whether through a removal order or on their own — are ineligible for a visa for a certain period of time, depending on his or her circumstance, unless they qualify for a waiver (Form I-212) to reenter the U.S. The most common deportation scenarios are highlighted below:

• 5 Years (a waiver is available by request)
  • An individual was a Lawful Permanent Resident with a criminal conviction and was put into removal proceedings when he or she returned from a trip;

OR

• The individual was put into expedited removal proceedings (without seeing an immigration judge) at the border, near the border or at an airport or seaport.

• 10 Years (a waiver is available by request)
  • The individual left the U.S. after an immigration judge had ordered the individual removed in absentia or without having attended the hearing;

OR

• The individual was ordered removed by an immigration judge;

OR

• The individual left the U.S. by his or her choosing while he or she was in immigration court proceedings.

• 20 Years (a waiver is available by request)
  • The individual has been removed from the U.S. more than once.

• Permanently ineligible (a waiver is available by request AFTER 10 years)
  • The individual was removed from the U.S. because he or she was convicted of an aggravated felony

OR

• The individual tried to reenter the U.S. after being in the U.S. unlawfully for a total of more than a year;

OR

• The individual was deported and then reentered or tried to reenter the U.S. without permission.
  • This last scenario could result in “reinstatement” of removal proceedings, which means that an immigration officer can deport you without letting you first see an immigration judge.

For more information about returning to the U.S. and applying for an immigrant visa, or if you have other immigration issues, the assistance of an experienced immigration attorney can help protect your legal rights. If you are seeking help on immigration matters or would like to apply for a green card, call the experienced attorneys at Bretz & Coven, LLP at (212) 267-2555.