Petty Offense Exception – When the I-601 Waiver or 212(d)(3) Waiver is Not Required

Petty Offense Exception

Section 212 of the Immigration and Nationality Act [8 U.S.C. § 1182] sets forth classes of aliens who are inadmissible, including aliens who are convicted of certain crimes:

(a) Classes of Aliens Ineligible for Visas or Admission.  Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds. –

(A) Conviction of certain crimes. –

(i) In general. -Except as provided in clauses (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or any attempt or conspiracy to commit such a crime…

Section 212(a)(2)(A)(i)(I) thus provides that aliens who have committed a crime involving moral turpitude are inadmissible.

However, Section 212(a)(2)(A)(ii) [§ 1182(a)(2)(A)(ii)] sets forth two exceptions:

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Section 212(a)(2)(A)(ii) (emphasized by me in bold above) is referred to as the “petty offense exception”.  The practical effect of this exception is that applicants who are convicted of a single crime involving moral turpitude are not deemed inadmissible for a visa or admission into the United States if the single criminal conviction falls within this petty offense exception.

In other words, if Section 212(a)(2)(A)(ii) applies, then the I-601 waiver for intending immigrants (normally required to waive the ground of inadmissibility triggered by a conviction for a crime involving moral turpitude), or 212(d)(3) waiver for non-immigrants, is not needed.

In order to qualify for the petty offense exception, you must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed.  You must also submit the court record showing the final disposition of the case, that should include the charge and the sentence.  A legal memorandum clearly outlining your qualification for the petty offense exception is recommended.