I-212 conditional waivers are a special type of waiver used in limited circumstances, rather than to forgive all deportations generally. The waiver essentially allows someone with an order of removal to get a pre-approval to return to the US despite a legal bar to reentry. It is somewhat uncommon and there are some significant exceptions where it may not be a good option for everyone.
The I-212 is a form used by applicants to requests various types of relief from immigration punishments, whether those are called “waivers” or “advance permission to reapply.” The essential part is that they allow a person to shorten or eliminate a punishment they have received, usually on the basis of having good behavior, a qualifying relative, and other positive factors.
In the I-212 conditional waiver context, applicants are requesting relief from an order of removal (often called deportation) which has not been executed. That means that a judge ordered that a person be removed but they were not actually removed. Other options may be available to someone who was actually removed.
The I-212 waiver allows someone to get permission in advance of their actual departure from the US (which triggers the actual punishment) to receive “consent to reapply for admission” and shorten their time abroad. This is one step in a multi-part process, which generally requires an I-130 family petition, an I-212 waiver, an I-601A waiver, and then consular processing.
The I-212 conditional waiver is established in 8 CFR Sec. 212.2(j), which reads:
“(j) Advance approval. An alien whose departure will execute an order of deportation shall receive a conditional approval depending upon his or her satisfactory departure. However, the grant of permission to reapply does not waive inadmissibility under section 212(a)(9)(A) of the Act resulting from exclusion, deportation, or removal proceedings which are instituted subsequent to the date permission to reapply is granted.”
This conditional process was implemented by rule in 56 FR 23212 on May 21, 1991. After new unlawful presence bars were introduced, this conditional process was not always useful because the applicant would still be inadmissible and need a waiver abroad. It become more relevant following the introduction of the provisional unlawful presence waiver process, and later the Expansion of the Provisional Unlawful Presence Waivers of Inadmissibility which became effective on July 29, 2016. This rule describes the process and DHS’ reasons for implementing it in this way.
It’s extremely important to understand the benefits and limitations of the I-212 conditional waiver process. When someone has an unexecuted order of removal, they are at risk of actually being detained and removed at any moment. Not everyone is going to enjoy the benefit of getting a waiver in these circumstances. Furthermore, the waiver does not waive everything. Many people have other problems that run alongside the issue solved by this process.
The ILRC has issued an excellent practice advisory that covers these topics in extensive detail, and which serves as a guide to figuring out whether the I-212 conditional process is the best one for a particular case. Some important considerations are:
It is highly recommended to work with an immigration lawyer in cases like these because there are serious risks and technical challenges.