212(h) waiver for criminal grounds

The Immigration and Nationality Act provides in section 212(h), that at the discretion of the United States Citizenship and Immigration Services, a waiver may be granted to those found to be inadmissible due to:

  • A crime involving moral turpitude
  • Multiple criminal convictions
  • Controlled substance violation if it involved a single offense of simple possession of 30 grams or less of marijuana
  • Prostitution and commercialized vice
  • Being involved in a serious criminal activity and having asserted immunity from prosecution.

Requirements for a Waiver

There are 3 different waiver options under section 212(h) of the Immigration and Nationality Act.  These waivers are applicable only to individuals who are applying for immigrant visas (or adjustment of status).

1.  The first option is available only to those who either is inadmissible based on activities related to prostitution and commercialized vice or the activities for which the applicant is inadmissible occurred more than 15 years before the date of the visa application.  In such a case, the waiver must also show that the applicant’s admission to the United States would not be contrary to the national welfare, safety or security and that the applicant has been rehabilitated.  (“Rehabilitation Waiver”)

2.  If the visa applicant is the spouse, parent, son or daughter of a United States citizen or lawful permanent resident, he or she may apply for waiver based on the extreme hardship the United States citizen or lawful permanent resident spouse, parent or child would suffer should the applicant be denied admission.  (“Extreme Hardship Waiver”)

3.  The visa applicant is a VAWA self-petitioner.

Inapplicability of Waiver

A 212(h) waiver is not available to the following individuals:

1.  An alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2.  An alien who was previously granted 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.

If you would like to discuss your waiver options, please contact us.