212h waivers can help persons get (or not lose) green cards if they have a criminal conviction.
You may be able to do both if you qualify for a 212h waiver.
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.
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You may be eligible for one of the following types of 212(h) 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 the 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 Waiver 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)
212h Waivers – Resources
- Update on 212h Defense Strategies
- Ninth Circuit Extends 212h Waivers to Certain LPRs with Aggravated Felonies
- Instructions for I-601 Waiver Applications (USCIS)
- Extreme Hardship Policy (USCIS)
- Understanding Extreme Hardship in Waivers (ILRC)
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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