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How To Qualify For A Criminal Waiver Under The Immigration Law

Under the Immigration and Nationality Act (“INA”), convictions of certain crimes can render a non-US Citizen deportable and/or inadmissible. For more information on what types of crimes can jeopardize a person’s immigration status, please refer to our site’s deportation section. Fortunately, the law does provide for discretionary waivers that allow the government, under certain circumstances, to waive some of these offenses. The waiver for criminal offenses is found under Section 212(h) under the INA. It authorizes the Attorney General to waive the conviction of crimes involving moral turpitude; multiple criminal convictions; prostitution and commercial vice; certain aliens who have asserted immunity from prosecution; and one conviction of possession of marijuana 30 grams or less.

General Rules for the 212(h) Waiver

There are three separate categories of applicants who are potentially eligible for the waiver.

  • 15 Years or More: A waiver may be granted to an applicant who can demonstrate that the crime occurred more than 15 years ago; the admission would not be contrary to the national welfare, safety, or security of the US; and the alien has been rehabilitated.
  • Extreme Hardship: the applicant must demonstrate that removal would result in extreme hardship to his US Citizen or Lawful Permanent Resident parent, spouse, son, or daughter.
  • The person is a Violence Against Woman Act (“VAWA”) self-petitioner

What Types of Factors Are Considered For Extreme Hardship?

Due to the discretionary nature of the waiver, there is not a fixed set of criteria that necessarily governs the adjudication of a 212h waiver. However, the case law has set out some factors that are normally considered. They include but are not limited to:

  • The qualifying relative’s family ties to the United States
  • The extent of the qualifying family member’s ties outside the United States
  • Conditions in the country of removal
  • Financial impact of departure from the United States
  • Significant health conditions

These are only some issues that are looked at. The USCIS Policy Manual has recently released further guidance on what types of issues officers should pay attention to. The benefit of retaining an experienced immigration lawyer is that he or she may help identify additional, unique circumstances that separate your case from the ordinary case and demonstrate how the effects of separation are far greater than what people typically experience from losing their loved ones.

Further Restrictions

Not all crimes qualify to be considered for the waiver. For example, conviction of murder or criminal acts involving torture are disqualifiers. Those who are convicted of crimes deemed violent or dangerous will generally also face substantial eligibility problems unless the applicant can demonstrate extraordinary circumstances or clearly show that the denial of the application will result in exceptional and extremely unusual hardship. Additionally, the law sets out further restrictions on lawful permanent residents applying for the waiver that do not necessarily apply to non-permanent residents, including a requisite period of continuous residence and a prohibition against conviction of an aggravated felony.

Waiver practice is extraordinarily complex. There are several layers and nuances that a trained legal professional can help you to spot and determine whether they hinder or enhance your particular case. While our firm handles a wide range of immigration matters, one of our core focuses is waiver practice, and we have the experience, expertise, and knowledge to help you achieve a favorable outcome.