212(h) Waiver for Criminal Convictions

Introduction to the 212(h) Waiver for Waiver of Criminal Grounds of Inadmissibility

Section 212(h) of the Immigration and Nationality Act provides a discretionary waiver for the following criminal grounds of inadmissibility:

  • Crimes involving moral turpitude (subparagraph 212(a)(2)(A)(I))
  • Multiple criminal convictions (212(a)(2)(B))
  • Prostitution and commercial vice (212(a)(2)(D))
  • Certain aliens who have asserted immunity from prosecution (212(a)(2)(E))
  • An offense of simple possession of 30 grams or less of marijuana (212(a)(2)(A)(i)(II))

Legal Requirements of the § 212(h) Waiver

INA 212(h)(1)(A) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), and (E) of the Act may be waived in the case of an alien who demonstrates to the satisfaction of the Attorney General that:

  • the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of status;
  • the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
  • the alien has been rehabilitated.

The Attorney General may also waive the grounds of inadmissibility under section 212(a)(2)(D)(i)-(ii) of the Act with regard to prostitution if the alien establishes to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated. INA 212(h)(1)(A).

INA 212(h)(1)(B) provides that certain grounds of inadmissibility under section 212(a)(2)(A)(i)(I)-(II), (B), (D)-(E) of the Act may be waived in the case of an alien who demonstrates that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter.

In evaluating extreme hardship to a qualifying relative, factors to be considered include, but are not limited to:

  • whether the qualifying relative has family ties to this country;
  • the extent of the qualifying relative’s family ties outside the United States;
  • conditions in the country of removal;
  • financial impact of departure from this country; and
  • significant health conditions, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
  • Matter of Cervantes, 22 I&N Dec. 560, 566 (BIA 1999); see also INS v. Jong Ha Wang, 450 U.S. 139 (1981).

The Attorney General, however, may not grant a waiver in the case of an alien who has been convicted of, or admits committing murder or criminal acts involving torture or an attempt or conspiracy to commit murder or a criminal act involving torture. INA 212(h).

The waiver is also unavailable to an alien who has previously been admitted to the U.S. as an alien lawfully admitted for permanent residence if, since the date of such admission, he has been convicted of an aggravated felony or he has not lawfully resided continuously in the U.S. for a period of not less than seven years immediately proceeding the date of initiation of proceedings to remove him from the U.S. Id.; see also Matter of Pineda, 21 I&N Dec. 1017 (BIA 1997); Matter of Yeung, 21 I&N Dec. 610 (BIA 1997). But see Matter of Michel, 21 I&N Dec. 1101 (BIA 1998) (finding that alien not previously admitted to the U.S. as an LPR is statutorily eligible for a 212(h) waiver, despite being convicted of an aggravated felony).

Further, even if the applicant demonstrates that he merits a grant of discretion under the waiver, he must also establish that he meets the terms, conditions, and procedures of the regulations promulgated by the Attorney General. INA 212(h)(2). Under 8 C.F.R. 1212.7(d), the Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those 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.  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 under INA 212(h)(2). 8 C.F.R. 1212.7(d). Matter of Jean, 23 I&N Dec. 373, 383 (BIA 2002).

Why Hire The Law Offices of Michael S. Cho

  • I have secured immigration waivers since 2002 for applicants who come from countries around the world including Brazil, Canada, Colombia, Ecuador, Mexico, the Philippines, Romania, and the United Kingdom.  I have clients who reside in states throughout the United States.
  • Since U.S. immigration law is federal, I am legally authorized to represent clients who reside in states throughout the United States as well as around the world on these matters.
  • I maintain a very high success rate on getting waivers approved on behalf of my clients.  I personally handle every important detail of your legal representation.  Please do realize however that past results do not constitute a guarantee , warranty, or prediction regarding the outcome of your legal matter.
  • I utilize the latest in secure technology to effectively represent my clients no matter where they may reside.  I respond to phone calls and emails throughout the day (and evening) and can engage in video conferences via Skype so that questions can be answered in face-to-face meetings regardless of where you are located.
  • I am a long-time member of the American Immigration Lawyers Association, the State Bar of California, and a graduate of the University of Chicago Law School, where I studied law directly under distinguished scholars such as Professor Barack Obama, now President of the United States of America.

All of my clients receive my personalized attention consisting of the following services:

Unlimited consultations with a responsive immigration lawyer
You always have access to me personally via telephone and e-mail.  This ensures that you get all of your questions answered to complete satisfaction from the moment your case is opened until your green card is secured.

Digital access to all of your immigration documents
Every single document you give to me along with all USCIS and Dept. of State correspondence and receipts are digitally scanned and securely stored with our law firm as part of your case file.  This has proven invaluable for my clients located throughout the world who require instant access to critical documents before embassy interviews, USCIS appointments, and other important events.

Expert attorney preparation of your USCIS and consular forms
I personally prepare and review your application and meticulously check it for accuracy.  I try to make sure that EVERYTHING is done right the first time, so that you avoid unnecessary delays or denials.  I also help you gather all required supporting documents, complete all relevant USCIS and consular forms, and submit everything in the most expeditious manner possible.

Preparation of the 212(h) waiver
I personally prepare and review your 212(h) waiver application and go through several revisions to make it as powerful and persuasive as possible.  I draft a personalized waiver statement citing legal case law tailored to your situation to maximize the probability of approval of your waiver application.  I inform you of the supporting documents necessary to maximize your chances of getting the waiver approved.  Typically, this consists of affidavits from people who know you and can attest to your good moral character and reputation in the community; your reasons for wanting to return to the United States; evidence of reform and rehabilitation such as therapy, employment, education, community involvement, and treatment or counseling; evidence of extreme hardship to a qualifying relative, if applicable; as well as your previous immigration and/or criminal records.

Constant monitoring and advocacy on your behalf
My work does not end with the submission of your petition.  I keep tabs on your case as it is being processed, keeping you up to date on its status as well as notifying you of any relevant changes in immigration laws and procedures.  The vast majority of my clients encounter no undue delays or problems with their cases.

Preparation for the interview
I personally prepare you for the consular interview.  I provide a checklist of all the documents you gather and should take to the interview and go over the types of questions that are likely to be asked.  Many have found this prep session invaluable in easing their fears and feeling confident going into their appointment.

Continued immigration support
Upon request, I can monitor your immigration status even after your case is resolved to ensure that you never fall out of legal immigration status.  I try to inform you when additional filings or actions must be taken and handle everything in the same professional and expeditious manner as before.