Immigration Waivers
212(H) Waiver
The 212(h) waiver for crime-related grounds can be used for various grounds of inadmissibility and has different requirements depending on the ground of inadmissibility and other factors.
The section 212(h) waiver is generally available to aliens in two circumstances.
First, the waiver is available if the offense that renders the alien inadmissible occurred more than 15 years ago "before the date of the application for a visa, admission, or adjustment of status"; the alien's admission would not be contrary to the national behavior, safety, or security of the U.S.; the alien has been rehabilitated; and a waiver is warranted as a matter of discretion.
Second, the waiver is available, irrespective of the time of the offense, if the alien can demonstrate that a denial of his or her admission to the U.S. would cause extreme hardship to a qualifying relative and that a visa, admission, or adjustment of status is warranted as a matter of discretion.
Either Permanent residents or nonresidents may apply for this waiver. This waiver may be filed either together with Adjustment of Status application or can be a stand-alone waiver.
CRIME | WAIVER |
| 212(a)(2)(D)(i) prostitution and commercial vice 212(a)(2)(D)(ii) activity for which the individual is inadmissible occurred over 15 years ago. | INA 212(h)(1)(A) 1) Alien has to prove that alien’s admission would not be contrary to the national welfare, safety, or security of the U.S. |
| 212(a)(2)(A)(I) -crimes involving moral turpitude 212(a)(2)(A)(i)(II) an offense of simple possession of 30 grams or less of marijuana and possession of drug paraphernalia related to simple possession (Exception :Smoking pot in a drug-free zone) 212(a)(2)(B) - multiple criminal convictions, 212(a)(2)(E) - certain aliens who have asserted immunity from prosecution | INA 212(h)(1)(B)1) His/her removal from the United States would result in extreme hardship to his/her United States citizen or lawful resident parent, spouse, son, or daughter.
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| 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) | INA 212(h)(1)(C) 1) The alien or a child of the alien must have been battered or have been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse |
However, there are specific bars for certain lawful permanent residents who have committed an aggravating felony or did not reside in the U.S. for 7 years.
The second part of INA 212(h) provides:
"No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."
The question whether the permanent resident is considered admitted to the U.S. is very complicated; only experienced immigration attorney knows how to do it wright.
We have first-hand experience with filing 212(h) Waivers. We can Help!
Note that a person can use 212(h) waiver when she files for Adjustment of Status and she was never a lawful permanent resident. (Matter of Michel, 21 I&N Dec. 1101 (BIA 1998). Also a lawful permanent resident charged as an arriving alien in removal proceedings may file stand alone 212(h) waiver where she is otherwise qualified for 212(h) waiver.
To apply for a 2121(h) waiver, you need to fill out Form I-601 and submit supporting documentation to prove the extreme hardship.
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