212h Waivers for Criminal Convictions

212h waivers can help you get or keep your green card if you have a criminal conviction.

Even if you are deportable because you were convicted of one of the following crimes, you may still be eligible for a 212h waiver:

(1) Crimes involving moral turpitude;

(2) Convictions for 2 or more offenses for which the aggregate sentence was 5 years or more;

(3) Engaging in prostitution or procuring prostitutes;

(4) Involvement in serious criminal activity where immunity from prosecution was asserted; or

(5) A single offense of simple possession of 30 grams or less of marijuana.

Client Reviews

You may be eligible for one of the following types of 212h waivers:

(1) 15-Year 212h Waivers You must demonstrate that the activities for which you are inadmissible occurred more than 15 years ago; that your admission would not be contrary to the national welfare, safety, or security of the US and 3) that you have been rehabilitated.

(2) Extreme Hardship 212h Waivers If you inadmissible due to any qualifying criminal conduct, you may qualify for a waiver if: (1) you can show that if you were denied admission, your US citizen or green card holder spouse, parent, son or daughter would suffer extreme hardship; and (2) the USCIS or an Immigration Judge exercises favorable discretion in your case.

Extreme hardship Factors include whether your qualifying relatives have family ties to the US; the extent of the qualifying relatives’ family ties outside the US; conditions in your home country; financial impact of your departure from the US; and significant health conditions, particularly when tied to an unavailability of suitable medical care in your country.

(3) Battered Spouse 212h Waivers If your spouse is a US citizen or green card holder and you were battered or subjected to extreme cruelty by your spouse, you may file a VAWA battered spouse petition. The same rules apply to a battered child. If you file such a battered spouse petition applying for a green card but are inadmissible due to qualifying criminal conduct, you can apply for a 212h waiver.

Applying for a 212h waiver is an extremely complex process. A person represented by an experienced immigration attorney is more likely to have their waiver approved.

212h waivers only waive the inadmissibility grounds relating to:

* Crimes involving moral turpitude (no limit to the number of offenses);
* Engaging in prostitution;
* A single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish (see additional discussion at Part D, infra) ;
* Conviction of two or more offenses of any kind with an aggregate sentence imposed of at least five years; or
* Asserting immunity against prosecution of a serious crime. In addition, the § 212(h) applicant must be:
* A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed;
* A VAWA self-petitioner;
* Inadmissible only under the prostitution ground; or
* Inadmissible based upon a conviction or event that took place more than 15 years before the current application. In these last two categories the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests.

212h waivers are granted as a matter of discretion. If the conviction to be waived was of a “dangerous or violent” offense, the applicant must meet an extraordinarily high standard in order to win a discretionary grant.

8 CFR 212.7(d) provides that in the case of a violent or dangerous offense, positive discretion to grant 212h waivers will not be exercised “except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship.

Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion” See also Matter of Jean, 23 I&N Dec. 373, 373 (AG 2002) (applying standard in order to win a discretionary grant)

What is Extreme Hardship for a 212h Waiver?

Extreme hardship Factors include whether your qualifying relatives have family ties to the US; the extent of the qualifying relatives’ family ties outside the US; conditions in your home country; financial impact of your departure from the US; and significant health conditions, particularly when tied to an unavailability of suitable medical care in your country.

• Extreme Hardship Considerations and Factors (USCIS)
• Matter of Anderson (BIA 1978)
• Matter of Lopez-Monzon (BIA 1979)
• Hassan v. INS (9th Cir. 1991)
• Matter of L-O-G (BIA 1996)
• Matter of Cervantes-Gonzalez v. INS (9th Cir. 2000)

212h Waivers – Resources

• Discretionary Waivers of Criminal Grounds of Inadmissibility Under INA § 212h (5-27-21)
  
• Waivers and Other Forms of Relief – USCIS Policy Manual
• Filing Certain Waivers of Inadmissibility (USCIS)
• Ninth Circuit Extends 212h Waivers to Certain LPRs with Aggravated Felonies
• Instructions for I-601 Waiver Applications (USCIS)
• Extreme Hardship Policy (USCIS)
• Eligibility for Relief: Waivers under Section 212h (ILRC)
• Understanding Extreme Hardship in Waivers (ILRC)

Judicial Review of 212h Waiver Denials

INA § 212(h) provides that no court has jurisdiction to review a decision whether to grant or deny a discretionary waiver.

But under INA § 242(a)(2)(D), courts retain jurisdiction to review constitutional claims or questions of law raised in a petition for review of a final order of removal filed in the federal judicial circuit in which immigration court proceedings were completed. Thus, if an person placed in formal removal proceedings applied for a § 212(h) waiver (e.g., with an adjustment application), the individual may challenge the denial of that waiver in a petition for review of a final removal order that raises constitutional or legal questions (e.g., whether the person is statutorily eligible to apply for a waiver).

For that reason, reviewing courts have considered challenges to § 212(h) waiver denials in some cases.

212h Waivers – Success Story

Below is an example of how we were able to get a 212(h) waiver for one of our clients:

Michelle and her husband, both natives of India, met in college over twenty-five years ago. Shortly after their wedding, Michelle’s husband found a job in the United States and his company agreed to sponsor him for an H-1B visa. Michelle accompanied her husband to the U.S. on an H-4 visa.

As many new immigrants do, the couple faced several challenges as they struggled to assimilate to their new life in the United States. Michelle had a very difficult time making this adjustment. She had a thriving career back in India, but was not authorized to work in the United States. As a result, she became very depressed. Unfortunately, she got into trouble with the law and was convicted for shoplifting on several occasions. Recognizing that she had a serious problem, Michelle sought professional help for her depression and was able to turn her life around.

Michelle’s husband was sponsored for a green card through his employer, but Michelle’s former attorney advised her not to apply on account of her convictions. When he became a U.S. citizen, Michelle’s husband filed an I-130 Petition for Alien Relative on her behalf. Once this petition was approved, Michelle filed two applications: an application to become a permanent resident, and an application for a waiver of inadmissibility under section 212(h) of the Immigration and Nationality Act. In order to obtain a 212(h) waiver, Michelle had to show that her husband and children would experience extreme hardship if she were forced to return to India.

USCIS denied her request for a waiver. They concluded that Michelle’s family would not experience extreme hardship if she were forced to return to India.

We filed an appeal, arguing that the USCIS completely ignored the significant emotional and psychological impact that Michelle’s departure would have on her husband and two young children. Read More…

---

---