212(h) Waiver

When other more liberal waivers or an immigrant is ineligible for adjustment of status because there is no visa immediately available, a Section 212(h) waiver may be the only type relief of available. A Section 212(h) waiver may also serve to assist those who are seeking to adjust status to a lawful permanent resident, but have criminal convictions that may have otherwise barred an adjustment of status.

For those eligible, a Section 212(h) waiver would be available to waive criminal grounds of inadmissibility for a crime involving more turpitude, or multiple crimes where the aggregate sentence to imprisonment was five years or more, a single offense of simple possession of thirty grams or less of marijuana, commercial vice activities and prostitution; and serious criminal offences involving a grant of immunity.

The waiver is available to certain immigrants including self-petitioners under the Violence Against Women Act (“VAWA”). The immigrant must meet the eligibility requirements and a favorable exercise of discretion must be received. VAWA self-petitioners only need a favorable exercise of discretion. Certain applicants will have to meet a higher threshold showing a “hardship.”

Those aliens who have been convicted of having committed, attempted or conspired to commit, or have committed acts that constitute murder or criminal acts involving torture are not eligible. Also, immigrants that have previously been granted lawful permanent resident status have additional hurdles to overcome; these immigrants must have lawfully resided in the United States for not less than seven years before removal proceedings have been initiated and they cannot have been convicted of an aggravated felony.

The Section 212(h) waiver sets out for four scenarios whether aliens can apply for relief.  The first category concerns aliens who are charged with prostitution as the only basis of inadmissibility.  The second category, which would apply to aliens with any other criminal ground of inadmissibility for which the waiver is available, is where the activities that rendered the aliens inadmissible, occurred more than fifteen years before the date of the application for a visa, admission or adjustment of status. Immigrants in these two categories do not have to establish an “extreme hardship” to a relative. They must, however, prove that their admission would not be contrary to national welfare, safety or security interest of the United States and that they have been rehabilitated.

The third category comprises those immigrants with more recent criminal activities.  For them, an relative is required and an applicant must establish that they are the spouse, parent or son or daughter of a United States citizen or lawful permanent resident and that relative would suffer an extreme hardship if the applicant is denied admission.  Included in the definition of son or daughter would be a child.

The last category applies to those aliens applying for a waiver who are VAWA self-petitioners.  They only need a favorable exercise of discretion.

In certain circumstances the Section 212(h) waiver application can be used as a stand-alone application. The rules are different depending on whether the immigrant is a lawful permanent resident that is deemed a returning resident (arriving alien) or if the immigrant is charged with being deportable. For those charged with deportability, the question arises as to whether there was a departure from and return to the United States, or there was never a departure from the United States. Returning lawful permanent residents charged with a ground of inadmissibility may file a stand-alone waiver application. Non-permanent residents that are arriving aliens need to apply for admission as lawful permanent residents and be in possession of immigrant visas to be eligible for a stand-alone Section 212(h) waiver.

Non-permanent residents charged with deportability may seek the Section 212(h) waiver in conjunction with an application for adjustment of status. eligibility, however, depends on whether the immigrant meets the qualifications to adjust status in the United States.

A lawful permanent resident who has departed the United States and returned after committing a deportable offense can file a stand-alone application if the deportable offense is also an inadmissible offense to which the Section 212(h) waiver applies. For the lawful permanent residents who cannot file a stand-alone application, they can file, if eligible, an application for adjustment of status in conjunction a Section 212(h) waiver.

It is important that any person seeking a Section 212(h) waiver contact Baurkot & Baurkot. Do not fight alone, regardless of whether you are in immigration court, being refused admission into the United States at a port or an airport, or are about to file an application with United States Citizenship & Immigration Services. You need competent legal representation. Call us at (484) 544-0022 or click here for a free, confidential consultation.