Immigration 101: Waivers of Inadmissibility
Waivers Under §212(H)
If you’re inadmissible because you have engaged in certain types of criminal activity, you may be eligible for a waiver of inadmissibility. These waivers apply to five specific grounds of inadmissibility. Two of these grounds are rarely applicable (aliens involved in prostitution or commercialized vice, and diplomats who exercise immunity from prosecution). The other three grounds are very common: (1) crimes involving moral turpitude; (2) multiple criminal offenses; and (3) crimes relating to a controlled substance, provided your offense only involved simple possession of less than 30 grams of marijuana.
Three things can disqualify you from obtaining a waiver. You’re automatically ineligible if: (1) you have ever been convicted of a crime involving murder or torture; (2) you were previously granted lawful permanent resident status in the US, and you were subsequently convicted of a crime involving murder or torture; and (3) if you are a lawful permanent resident who has not spent the last seven years living continuously in the US.
Assuming you don’t fall under one of the three categories of ineligibility, there are three different ways to show that you are eligible. First, if you are a VAWA self-petitioner, you are automatically eligible. Second, if you are inadmissible because of a criminal offense that occurred more than fifteen years ago, you may be eligible if you can show that you have been rehabilitated and that your admission would not be contrary to the welfare, safety, or security of the US. Third, if you have a spouse, parent, or child who is either a US citizen or a lawful permanent resident, and you can show that your removal would cause them extreme hardship, you are eligible.
Grants of 212(h) waivers are discretionary, so even if you show that you are eligible, you’ll still have to convince an immigration judge that you are the kind of person who deserves to be granted an opportunity to remain in the US.
Waivers Under §212(C), Based on Pre-1998 Convictions
If you are a lawful permanent resident, and you have been found inadmissible or deportable based on a criminal conviction from before April 24, 1997, you might still be eligible for a waiver. This waiver provision was repealed many years ago, but still applies in some situations. Under this provision, permanent residents who have been in the US for more than seven years can apply for a discretionary waiver of certain removability grounds arising from convictions that occurred before April 24, 1997. There are many other requirements for these waivers, and the rules governing them are very complicated. If you believe you might be eligible, you should consult an experienced immigration attorney for more information.
This article is part of our ongoing “Immigration 101” series, in which we break down topics in US immigration law. For more articles in this series, click here.
The content in this post was originally written by Stuart Nickum and adapted by Lena Barouh.