QUESTION: I am a Canadian citizen and require 2 waivers to enter the United States – Form I-192 and Form I-212. If I submit both forms to waive both the 5-year ban and to waive the fraud/misrepresentation charge under INA Section 212(a)(6)(C)(i), can both forms be submitted together? If so, can they be submitted together in one envelope and with only one fee? Is this considered to be one application process, meaning that if my I-212 gets approved then my I-192 will also automatically be approved too?
REPLY: Since the creation of the Department of Homeland Security (“DHS”), there has been some confusion regarding the filing of Forms I-212, Application for Permission to Reapply for Admission Into the United States After Deportation of Removal, especially when a Form I-212 is being filed simultaneously with a Form I-192 by a Canadian citizen. Although U.S. Citizenship and Immigration Services (“USCIS”) retains jurisdiction to adjudicate Forms I-212 in certain situations (such as when a Canadian has been subject to an order of expedited removal on grounds of INA § 212(a)(7)(A) only), a Form I-212 that is being filed simultaneously with a Form I-192 is adjudicated by U.S. Customs and Border Protection (“CBP”) officials. This means that both Forms I-212 & I-192 can be filed together at any U.S. port of entry (click here to view a list of CBP ports of entry where Forms I-192 & I-212 are accepted). Our office recently confirmed this information with CBP officials at the Port of Buffalo.
Each Form (I-192 & I-212) must be prepared separately and applicants submitting both Forms must pay both of the filing fees. As of January 2010, the filing fee for Form I-192, Application for Advance Permission to Enter as a Nonimmigrant, is $545 USD. The filing fee for Form I-212 is also $545 USD.
The Board of Immigration Appeals (“BIA”) has set forth different legal standards to be applied by the government when adjudicating Form I-192 and Form I-212. Each application is subject to a different legal standard. Specifically, CBP officials adjudicating Forms I-192 must follow the legal framework established by the BIA in Matter of Hranka. When adjudicating Forms I-212, CBP officials must follow the legal guidelines annunciated by the BIA in Matter of Tin (see also Matter of Lee).
Since there are different legal standards applied in adjudicating Forms I-192 & I-212, it is advisable to prepare two (2) separate and completely independent application packages, each tailored to demonstrate why the applicant meets the applicable legal standard for approval. There are also different required supporting documents for each application. For these reasons, it is recommended that each waiver application be prepared separately with its own legal analysis and supporting evidence – even when both Forms I-192 & I-212 are being submitted by the same individual at the same time and location.
Due to the different legal standards involved, there is no automatic approval of one application upon approval of the other. While the legal standard used to adjudicate Form I-192 is often viewed as a more difficult standard to meet than that for Forms I-212, all applications are considered independently. Accordingly, there is no guarantee that one application will be approved following the approval of the other.
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