Becoming a Resident or Saving your Residency Through a 212(h) Waiver

By Attorneys Ben Loveman & Nancy E. Miller

Criminal convictions are a major obstacle for some would-be immigrants seeking lawful permanent resident status in the United States.  Similarly, for some persons already fortunate enough to have obtained permanent residency, criminal convictions can prove troublesome when seeking reentry to the United States after traveling abroad.  The reason some criminal convictions cause so much trouble, even where seemingly minor, is because aspiring residents and returning residents must not be ‘inadmissible’ to the United States–meaning ineligible for admission as a lawful permanent resident.

Fortunately, there is a way past this potentially major obstacle.  Thus, many persons with criminal convictions may be admitted as lawful permanent residents but only if they can establish eligibility for a waiver under Immigration and Nationality Act Section 212(h).  The 212(h) waiver discussed in this article has been subject to recent litigation and as a result persons who previously did not qualify may now be eligible and so should consider having an experienced attorney take a fresh look at their case.

The applicant must be otherwise eligible for permanent resident status which at the very least requires an immigrant visa petition. Beyond this basic requirement, the requirements for a 212(h) depend on the applicant’s immigration history and circumstances at the time the application is submitted.

The 212(h) waiver can be used to cure inadmissibility based on:  (1) conviction or commission of a crime 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; and (5) conviction or commission of a single offense of simple possession of 30 grams or less of marijuana and possession of drug paraphernalia related to the use of marijuana.

There are three subsections to the 212(h) waiver statute.  In the first, an applicant for residency may apply for the waiver if it has been at least 15 years since the crime occurred.  To be granted a waiver under this subsection, it must also be shown that granting the application would not be contrary to the national welfare, safety or security of the United States and that the applicant is rehabilitated. In the second, a waiver may be granted where the applicant is the spouse, parent, or son or daughter of a U.S. citizen or lawful permanent resident.  Here, the applicant must establish that waiver denial would result in extreme hardship to a qualifying relative. In the third, the waiver may be granted to the beneficiary of ‘self-petition’ based on domestic violence or extreme cruelty.  For this subsection the applicant need not establish rehabilitation or hardship.  Finally, for any of these versions of the 212(h) waiver to be approved, the applicant must convince the government that they deserve a waiver as a matter of discretion.

An applicant may apply for a 212(h) waiver under two circumstances.  The waiver is available to applicants for initial admission as permanent residents whether through adjustment of status inside the U.S or through consular processing at a U.S. Embassy abroad.  In this case, the requirements described above are all the requirements and no further limitations apply.

The waiver is also available to applicants who are already lawful permanent residents. A U.S. resident could require a waiver if: (1) as a result of their criminal convictions they are placed in removal proceedings and seek to ‘re-adjust’ their status; or, they travel after receiving their conviction and upon return are not admitted to the U.S. but instead are paroled into the U.S. as an ‘arriving alien’ and placed in removal proceedings. This situation is unique in that it is the only circumstance where the applicant may seek a waiver without needing to file a new application for adjustment of status.

However, for persons who have been granted lawful permanent resident status through consular processing (as opposed to adjustment of status), there are additional limitations to waiver eligibility.  First, they will not be eligible for a 212(h) waiver if removal proceedings begin within seven years of the date of their admission. Second, they will not be eligible if since the date of their admission they have been convicted of an aggravated felony.

The 212(h) waiver is a powerful tool for aspiring residents and residents seeking to retain their status.  Analyzing eligibility and successfully seeking a waiver is a complex process.  Any non-citizen who has been charged with or convicted of a crime should consult an experienced and knowledgeable immigration attorney to determine the legal impact and possible remedy for that criminal event.