What is a section 212(h) waiver of inadmissibility in removal proceedings?
Section 212(h) of the INA is an important waiver of inadmissibility if you have committed certain crimes. This waiver can be used if you are facing deportation/removal proceedings in immigration court. This specific waiver must be filed in immigration court with an immigration judge. For information on alien inadmissibility, visit our section here.
You can obtain a 212(h) waiver for:
- crimes involving moral turpitude, except murder and torture
- commission of more than one crime
- diplomats who assert immunity;
- a single offense of simple possession of 30 grams or less of marijuana.
Due to the strict nature of the Immigration and Nationality Act (INA), you cannot qualify for a waiver if you have a more serious drug conviction or if you have been found guilty of an aggravated felony. Read our section on Deportation and Removal Proceedings here for more information.
For more information on how an aggravated felony conviction can affect your eligibility for a 212(h) waiver, please see our section below on aggravated felony and more eligibility considerations.
Do I have to show that I would face extreme hardship if deported to qualify for the 212(h) waiver?
This waiver is based on (1) “15 year waiver” or (2) the extreme hardship to a qualifying family member. Extreme hardship to family members must be established or a good moral character for the last 15 years must be shown. If you seek such a waiver, you must prove that you merit a favorable exercise of discretion, meaning that the Officer or Judge believes that he or she deserves another chance.
Applying for a 212(h) waiver is a serious undertaking, and errors or omissions may cause a denial of your application. For expert legal advice, please call or email our Los Angeles immigration attorneys now for a free consultation.
Am I eligible for the 212(h) 15 year waiver?
The “15 year waiver” applies if you can establish that:
- the activities at issue occurred more than 15 years before the date of adjustment of status;
- your admission would not be contrary to the national welfare, safety or security of the US;
- you are rehabilitated; and
- you meet all of criteria of the regulation.
This waiver does not apply to prostitutes. The 15 years of good moral character means no criminal convictions for at least 15 years from the last conviction. Read more about the Good Moral Character requirement for immigration purposes.
Am I Eligible for an immigration waiver based on extreme hardship of a family member?
The “extreme hardship waiver” focuses on the extreme hardship to a qualifying family member. In the case of a violent crime, the new regulation requires that the family member would face exceptional and unusual hardship if the immigrant in proceedings were deported.
In order to be a qualifying family member, your spouse, parent, son or daughter must be U.S. citizens or lawful permanent residents and they would need to show evidence of extreme hardship if you were not going to get your green card and/or be deported from the United States. Evidence emphasizing medical, educational and emotional hardships is usually required. Economic hardship alone is not a sufficient basis for this waiver.
Even if hardship is established the waiver can still be denied. This occurs when the Immigration Judge believes that you do not merit a favorable exercise of discretion for such waiver.
If you have any questions about whether you qualify or for applying for your waiver, contact our experienced immigration attorneys at (213) 738-8700 to receive a free consultation today.
Aggravated Felony and More Eligibility Considerations for a 212(h) Waiver
Immigration law reforms after 1997 limited the eligibility for a §212(h) waiver. The new law provided that at least some lawful permanent residents (LPRs) cannot apply for the waiver if they (a) have been convicted of an aggravated felony since a certain type of admission or (b) have failed to accrue seven years of lawful continuous residence before removal proceedings are initiated. Not all LPRs are subject to these bars, however. Courts have held that the bars are triggered only when a person is admitted at a U.S. port of entry as an LPR, but are not triggered when a person adjusts status to LPR. The BIA disagrees, and one federal court has agreed to defer to the BIA’s reading. This section will give an update on defense strategy and current litigation.
In cases arising within Ninth Circuit, federal courts have held that the bars apply only to persons who have been admitted to the U.S. as permanent residents at a border or border equivalent. Merely adjusting status to lawful permanent residency does not trigger the bars. Any person who has not been admitted at the border as an LPR may be able to apply for a §212(h) waiver despite conviction of an aggravated felony or lack of the seven years. Where an LPR is subject to the bars, an aggravated felony conviction will cause disqualification from §212(h) eligibility only if the conviction occurred after admission as a permanent resident at a border or border equivalent, as opposed to after adjustment or some other admission.
For example, a person who adjusts status to LPR and then is convicted of a crime involving moral turpitude (CIMT) is not subject to the LPR bars, because he never has been admitted at the border as an LPR. Because he is not subject to the bars, the fact that he has an aggravated felony conviction does not disqualify him from applying for § 212(h). Immigration law is a very complex and constantly changing area of law. If you have any questions as to your eligibility to apply for a 212(h) waiver, please feel free to contact us by phone or email. Our experienced Los Angeles immigration attorneys are ready to help you win your case.
Should I hire an Immigration Attorney to handle my deportation case?
In important matters such as removal proceedings and deportation hearing it is strongly encouraged that you retain a lawyer. There are often many options available for an individual in immigration court that he or she may not be aware of. Being deported from the United States has serious effects and should not be taken as a light topic. Our immigration lawyers in Los Angeles have successfully helped hundreds of clients in immigration court and offer a free consultation to get you started. Contact us by phone or email today.