Section 212(h) of the Immigration and Nationality Act (“INA”) authorizes discretionary waivers of certain “inadmissible” crimes (offenses that prevent lawful admission to the U.S.1
There are four general circumstances in which an alien can request a 212h waiver:
- When denial of admissibility would result in extreme hardship to the immigrant’s spouse, children or parent who is a U.S. citizen or lawful permanent resident (“LPR” or “green card” holder);
- When the conviction is at least 15 years old or consists solely of prostitution, and the petitioner has been rehabilitated and is not a security threat to the U.S.;
- When the immigrant is a Violence Against Women Act (VAWA) self-petitioner; or
- As a defense in removal (deportation) proceedings when used with an application for adjustment of status or to retroactively waive inadmissibility at the time of a prior admission.
To help you better understand 212h waivers, our California immigration lawyers discuss the following, below:
- 1. What crimes can be waived with a 212h waiver?
- 2. When is someone ineligible for 212(h) relief?
- 3. Can 212h be used to waive an aggravated felony conviction?
- 4. What if I was admitted as an LPR at the border?
- 5. When can someone request a 212h waiver?
- 6. What if my conviction was for a dangerous or violent felony?
- 7. How do I prove I merit a waiver?
- 8. Can I appeal if my application is denied?
Under INA 212h the United States Attorney General has the discretion to waive certain crimes. They are:
- Crimes involving moral turpitude (“CIMT”),2
- Multiple criminal convictions with total sentences to confinement of 5 years or more,3
- Prostitution and commercial vice,4
- Crimes by certain aliens who have asserted immunity from prosecution,5 and
- A single offense of simple possession of 30 grams or less of marijuana or a similar minor THC-related offense (such as possession of marijuana paraphernalia).6
It is important to keep in mind that 212h waivers are discretionary. This means that even if an alien qualifies for relief, it will not necessarily be granted.
A 212h waiver will be denied if the Attorney General determines that admission of the alien to the U.S. would be contrary to national welfare, safety or security.
Additionally, if the conviction was for a “dangerous or violent” offense (discussed below), the applicant must meet an extraordinarily high standard in order to be granted 212h relief.
Finally, notwithstanding other eligibility, an alien is will find it difficult to receive a 212h waiver if the alien has been convicted of (or admitted committing acts that constitute):
- Murder (or attempt or conspiracy to commit murder),
- Criminal acts involving torture (or attempt or conspiracy to commit torture),
- An aggravated felony following lawful admission at a U.S. point of entry;7 or
- A removable (deportable) offense if the alien has not resided lawfully in the U.S. for at least 7 continuous years immediately preceding a final order of removal (deportation).8
Note that these last two categories apply only to people who entered the country as lawful permanent residents, not to people who adjusted status to permanent residency while in the U.S.9
These are discussed in more detail below.
Yes, with certain conditions, someone convicted of an aggravated felony can apply for a “stand-alone” 212h waiver.
Aggravated felonies consisting of theft, fraud, counterfeiting, or other white collar crimes are the most typical ones in which a stand-alone 212h waiver is granted.
To qualify, a lawful permanent resident (green card holder) must have adjusted to permanency while in the United States (as opposed to being admitted as a lawful permanent resident at the border or its equivalent, such as an airport).10
For example: A 212h waiver is obtainable if someone:
- Adjusted his status to a lawful permanent resident (green card holder) while in the U.S.,
- Became inadmissible to the U.S. due to a conviction for an “inadmissible” crime,
- Traveled out of the U.S., and
- Was then improperly arrested on return to the U.S. as an arriving alien.
Immigrants who were admitted to the U.S. as green card holders (as opposed to adjusting their status within the U.S.) and then deported have a slightly different set of eligibility requirements for a 212h waiver.
These residents must have resided lawfully in the U.S. continuously for at least 7 years before they were deported.
Importantly, this 7 year period does not stop running when the immigrant is arrested or found guilty of the underlying crime.
As long as the alien lived in the U.S. continuously for 7 years before his/her order of deportation became final, he/she is eligible for 212h relief.
Non-permanent residents that are arriving aliens will need to apply for admission as lawful permanent residents and be in possession of immigrant visas to be eligible for Section 212(h) waiver.
For instance, a former permanent resident who was deported because of an aggravated felony conviction may be able to seek a 212(h) waiver to reunite with his or her family in the U.S. if he/she meets the qualifications.11
The § 212(h) waiver is most commonly use to waive inadmissibility in conjunction with:
- An application to adjust status (either by petition or in removal proceedings);
- An application to immigrate through consular processing; or
- When seeking admission at the border and declared inadmissible.
It also can be used as a defense in removal proceedings to refute charges that:
- An alien is deportable due to having been inadmissible when last admitted, or
- An alien is deportable based on a conviction, when in fact the alien actually left the U.S. by voluntary departure and could have applied for a § 212(h) waiver upon return.
Federal regulations provide that the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances.
Extraordinary circumstances might include:
- Cases involving national security or foreign policy considerations, or
- Cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship.12
Note that this standard is more difficult to meet than the “extreme hardship” test to family members applicable under other sections of the INA.
Supporting documents will maximize your chances of getting a 212h waiver approved. Such documents can include (but are not limited to):
- Affidavits from friends, family and co-workers who can attest to your good moral character and reputation in the community;
- A statement of your reasons for wanting to return to / remain in the United States;
- Evidence of rehabilitation (such as counseling, employment, education, community involvement);
- Evidence of extreme hardship to a qualifying relative, if applicable; and
- Anything else that might prove you should be here.
Normally, no. Courts do not have jurisdiction to review the Attorney General’s discretion to grant or deny a 212h waiver.
However, an alien may be able to challenge his or her denial if a significant right was denied or there was a clear error of law or fact.
Deported or declared inadmissible? Call us for help…
If you or someone you know is at risk of removal from, or inadmissibility to, the United States we invite you to contact us for a free consultation.
To schedule your free consultation with a lawyer, call us or submit the form on this page.
Don’t jump to the conclusion that you can’t become a U.S. resident just because you were convicted of a crime. You might be surprised at how many ways there are to remain in the U.S.
- Immigration and Nationality Act (“INA”) 212h.
- INA 212(a)(2)(A)(I).
- INA 212(a)(2)(B).
- INA 212(a)(2)(D).
- INA 212(a)(2)(E).
- Other similar crimes are possession of a small amount of concentrated cannabis, or being under the influence of THC-carboxylic acid. See INA 21 USC § 802(16); INS General Counsel Legal Opinion 96-3 (April 23, 1996); Medina v. Ashcroft, 393 F.3d 1063, 1065 (9th Cir. 2005); Matter of Martinez-Espinoza, 25 I&N Dec. 118, 125 (BIA 2009) (§ 212(h) is available to waive possession of drug paraphernalia, as long the respondent can establish that the paraphernalia was for the “sole purpose of introducing 30 grams or less of marijuana into his body.”)
- Sum v. Holder, 602 F.3d 1092 (9th Cir. 2010).
- INA 212 (i)(2).
- Sum v. Holder, end note 7.
- Matter of J-H-J-, 26 I.
- INA 212(h)(2); 8 C.F.R. 1212.7(d).