New York Lawyer's Legal Updates

212(h) Immigration Waiver For Criminal Conviction

Author: NYC immigration lawyer ALENA SHAUTSOVA

NYC immigration lawyer Alena Shautsova helps non-citizens to obtain a waiver of inadmissibility in connection with criminal convictions that are affecting one’s application for adjustment of status or United States visa.

Almost all criminal convictions, and at times, even arrests will complicate a person’s immigration status in the United States. Some convictions/admission of committing a crime may make a person ineligible for adjustment of status or a visa; some will cause a person to be found as lacking good moral character necessary for naturalization, cancellation of removal, or waivers… Some convictions may have a temporary effect and some permanent. For some convictions, however, an immigration waiver may be available. A waiver is like permission, a pardon sort of, to be forgiven for the conviction for Immigration purposes. But a waiver is not available for every immigration situation and for every conviction.

INA 212(h) provision states that a waiver is available for certain criminal conduct for (1) crimes that occurred more than 15 years ago if it was a crime of prostitution or one involving moral turpitude (here, it is not necessary to have a qualifying relative and prove extreme hardship to them); (2) extreme hardship waiver for crimes related 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;
  • Conviction of two or more offenses of any kind with an aggregate sentence imposed of at least five years; or
  • Asserting immunity against the prosecution of a serious crime.

In case of this type of waiver, an applicant must have a qualifying relative who will suffer extreme hardship in case the applicant cannot obtain the waiver. A qualifying relative here may be US citizen or green card holder spouse, parent, son or daughter; and (3) a waiver for VAWA- self petitioners. For VAWA-self petitioners who are filing for 212(h) waiver, it is not necessary to prove hardship to themselves and no qualifying relative is necessary here as well. When someone refers to a 212(h) waiver, they usually mean the extreme hardship part of it. But in fact, 212(h) INA section of the law, covers three distinct waiver qualifications.

Factors that may help to win 212(h) extreme hardship waiver

Note that the law does not define the “extreme hardship.” Rather, there are “factors” that USCIS takes into consideration to determine if such a hardship would exist or not. Hence, USCIS adjudicators enjoy generous discretion in granting or denying the waiver applications. However, USCIS did publish a list of factors that are considered to be heavily positive when they adjudicate 212(h) waivers:

  1. Qualifying relative was granted Iraqi or Afghan Special Immigrant Status, T nonimmigrant status or asylee or refugee status from the waiver's applicant's country of relocation
  2. The qualifying relative is on active duty with any branch of the U.S. Armed Forces
  3. Either the qualifying relative or a member of the household who is dependent on the qualifying relative's care is disabled or suffers from a medical/physical condition that makes travel to or residence in the foreign country detrimental to his or her health or safety
  4. The Department of State has issued either a countrywide travel warning or one for a region of the country where the applicant or the qualifying relative would likely relocate
  5. Separation would result in the qualifying relative becoming the primary caretaker —and possibly income-earner — for the couple's children or otherwise taking on significant parental or other caregiving responsibilities.

However, there is much more that is taken into consideration when USCIS makes a decision on the waiver. According to the USCIS manual, the following aspects will be weighed before a decision is made:

Factors and Considerations for Extreme Hardship
Family Ties and Impact Qualifying relative's ties to family members living in the United States, including age, status, and length of Family Ties and residence of any children. Impact Responsibility for the care of any family members in the United States, particularly children, elderly adults, and disabled adults. The qualifying relative's ties, including family ties, to the country of relocation, if any. Nature of the relationship between the applicant and the qualifying relative, including any facts about the particular relationship that would either aggravate or lessen the hardship resulting from separation. Qualifying relative's age. Length of qualifying relative's residence in the United States. Length of qualifying relative's prior residence in the country of relocation, if any. Prior or current military service of a qualifying relative. Impact on the cognitive, social, or emotional well-being of a qualifying relative who is left to replace the applicant as a caregiver for someone else, or impact on the qualifying relative (for example, child or parent) for whom such care is required.
Social and Culture Impact Loss of access to the U.S. courts and the criminal justice system, including the loss of opportunity to request or provide testimony in criminal investigations or prosecutions; to participate in proceedings to enforce labor, Social and employment, or civil rights laws; to participate in family law proceedings, victim's compensation proceedings, or Cultural Impact other civil proceedings; or to obtain court orders regarding protection, child support, maintenance, child custody, or visitation. Fear of persecution or societal discrimination.
Prior grant of U nonimmigrant status. Existence of laws and social practices in the country of relocation that would punish the qualifying relative because he or she has been in the United States or is perceived to have Western values. Access or lack of access to social institutions and structures (official and unofficial) for support, guidance, or protection. Social ostracism or stigma based on characteristics such as gender, gender identity, sexual orientation, religion, race, national origin, ethnicity, citizenship, age, political opinion, marital status, or disability.- Qualifying relative's community ties in the United States and in the country of relocation. The extent to which the qualifying relative has integrated into U.S. culture, including language, skills, and acculturation. The extent to which the qualifying relative would have difficulty integrating into the country of relocation, including understanding and adopting social norms and established customs, including gender roles and ethical or moral codes. Difficulty and expense of travel/communication to maintain ties between qualifying relative and applicant if the qualifying relative does not relocate. Qualifying relative's present inability to communicate in the language of the country of relocation, as well as the time and difficulty that learning that language would entail. Availability and quality of educational opportunities for qualifying relative (and children, if any) in the country of relocation. Availability and quality of job training, including technical or vocational opportunities, for qualifying relative (and children, if any) in the country of relocation.
Economic Impact Economic impact of applicant's departure on the qualifying relative, including the applicant's or qualifying relative's ability to obtain employment in the country of relocation. Economic impact resulting from the sale of a home, business, or another asset. Economic impact resulting from the termination of professional practice. Decline in the standard of living, including due to significant unemployment, underemployment, or other lack of economic opportunity in the country of relocation. Ability to recoup losses, or repay student loan debt. Cost of extraordinary needs, such as special education or training for children. Cost of care for family members, including children and elderly, sick, or disabled parents.
Health Conditions & Care Health conditions and the availability and quality of any required medical treatment in the country to which the applicant would be returned, including the length and cost of treatment. Psychological impact on the qualifying relative due to either separation from the applicant or departure from the United States, including separation from other family members living in the United States. Psychological impact on the qualifying relative due to the suffering of the applicant. Prior trauma suffered by the qualifying relative that may aggravate the psychological impact of separation or relocation, including trauma evidenced by prior grants of asylum, refugee status, or other forms of humanitarian protection.
Country Conditions Conditions in the country of relocation, including civil unrest or generalized levels of violence, current U.S. military operations in the country, active U.S. economic sanctions against the country, the ability of the country to address significant crime, environmental catastrophes like flooding or earthquakes, and other socio-economic or political conditions that jeopardize safe repatriation or lead to a reasonable fear of physical harm. Temporary Protected Status (TPS) designation. Danger Pay for U.S. government workers stationed in the country of nationality. Withdrawal of Peace Corps from the country of nationality for security reasons. DOS Travel Warnings or Alerts, whether or not they constitute a particularly significant factor, as set forth in Part E below.

Please note that some persons are disqualified from applying for the wavier: persons who are trying to file “stand-alone” 212(h) waiver (apart from arriving aliens); those who are convicted of most drug-related offenses; persons convicted of murder, criminal acts involving torture or attempts or conspiracy of the same; and persons who have previously been admitted to the US as aliens lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the US for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the US. In case of the LPR-prohibition, it has to be noted that it matters how a person became a green card holder: if he/she adjusted the status, then the prohibition will not apply; if received an immigrant visa at the border and that’s how the status of a green card was first afforded to him/her, then the prohibition will apply.

Also note, that the current regulation brings somewhat conflicting and unfair result: green card holders with qualifying aggravated felony are in the worse situation than non-green-card holders. In the same circumstances, a non-green cardholder will be able to apply for the waiver, when the green card holder will not able to.

Finally, Att. General modified requirements for the waiver of the crimes that are considered to be violent or dangerous. A waiver in these circumstances will be granted only if there is a national security interest, foreign policy or there is a showing of exceptional and extremely unusual hardship to the applicant or his/her family members. Such crimes can be: unarmed robbery; burglary, recklessly causing serious injury, child sex offenses, robbery...

If you need help with 212(h) waiver application, please reserve a confidential consultation with our New York Immigration lawyers by calling 917-885-2261 or here.

10 June 2020
Watch Our YouTube Channel Free Legal Videos

We use cookies to deliver our online services. Details of the cookies and other tracking technologies we use and instructions on how to disable them are set out in our Cookies Policy. By using this website you consent to our use of cookies.