INTRODUCTION
Waivers permit a non-citizen to excuse actions that cause the non-citizen to be inadmissible to the United States. An addition, certain waivers excuse certain actions that caused a green card holder to be deportable. Waivers are available before USCIS and the Immigration Court.
212(h) Waiver (criminal conviction waiver of inadmissibility)
The most commonly used waiver for criminal conduct is known as the 212(h) waiver. This waiver is used in the adjustment process to waive past criminal conduct that makes an applicant inadmissible under § 212 of the INA. In order to qualify for a 212(h) waiver you must prove the following elements:
- Extreme hardship to spouse, parent, or child of a citizen or legal permanent resident of the United States
- If green card holder, then you must have been residing in the US for not less than 7 years
- Crime cannot be classified as aggravated felony
212(h) waives crimes that make an alien inadmissible under § 212(A)(i)(I), (B), (D), and (E) or subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana. The 212(h) waiver is filed on the form I-601, typically in conjunction with your application for adjustment of status.
212(i) Waiver (immigration fraud waiver of inadmissibility)
This waiver is used to waive grounds of inadmissibility related to fraud in connection to the immigration process. To qualify for the 212(i) wavier you must prove the following:
- Extreme hardship to spouse or parent of a citizen or legal permanent resident of the United States
212(i) waives conduct that make a alien inadmissible under § 212(a)(6)(C). Generally, this covers any false use of documents such as fake social security cards, employment documents, and passport misuse. It could also encompass any criminal conduct related to fraud.
Please note that the 212(i) waiver does not include children as qualifying relatives for hardship. Children are included if the 212(i) waiver is made in adjusting under “Battered Spouse” provisions.
The 212(i) waiver is filed on the form I-601, typically in conjunction with your application for adjustment of status.
212(a)(9)(B) Waiver (illegal presence waiver of inadmissibility)
This waiver is used to waive grounds of inadmissibility related illegal presence in the United States. If you have been in the United States for more than 180 days and you did not have a legal status and you exited the United States, you will have a three year bar to return to the United States. If your illegal presence was over one year, then you will have a ten year bar to return to the United States.
To qualify for the 212(a)(9)(B) wavier you must prove the following:
- Extreme hardship to spouse or child of a citizen or legal permanent resident of the United States
I-212 Permission to reapply (after deportation)
If you were previously removed from the U.S. are inadmissible and may not be re-admitted to the U.S. for a specified period of time. However, you may apply for permission to reapply for admission. Permission to reapply for admission is applied for by submitting a From I-212 together with the appropriate supporting documentation and filing fee.
You may apply for an I-212 waiver in conjunction with an immigrant or nonimmigrant visa application. In many instances, you may seek permission to reapply for admission in conjunction with the filing of a waiver application based on a specific ground of inadmissibility. The I-212 application, if granted, would waive the prior removal.
There are no prerequisites such as a qualifying family member. Applications are considered on a case-by-case basis, and all relevant factors are considered, such as:
- The basis for deportation
- Recency of deportation
- Length of residence in the U.S.
- Moral character of the applicant
- The Applicant’s respect for law and order
- Evidence of reformation and rehabilitation
- Family responsibilities of applicant
- Inadmissibility to the U.S. under other sections of law
- Hardship involved to applicant and others
- The need for services in the U.S.
237(a)(1)(H) Waiver (immigration fraud waiver of deportability in the Immigration Court)
This waiver is used to waive grounds of inadmissibility related to fraud in connection to the immigration process. To qualify for the 237(a)(1)(H) wavier you must prove the following:
- that the applicant is the spouse, parent, son or daughter of a citizen or legal permanent resident of the United States; and
- that the applicant was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility under paragraphs (5)(A) (lack of a labor certification) and (7)(A) (lack of a valid immigrant visa or entry document) of § 212(a) which were the direct result of that fraud or misrepresentation.
Please note that this waiver does not require demonstration of extreme hardship to the qualifying relative. The waiver is purely a matter of discretion before the Immigration Judge. There is no official form or application.
EXTREME HARDSHIP
Most waivers are dependent upon a showing that the bar imposes an extreme hardship on a qualifying family member. Congress provided this waiver but limited its application. By such limitation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is “extreme” and thus only in cases of real actual or prospective injury to the United States national or lawful permanent resident will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts.
Extreme hardship can be demonstrated in many aspects of your qualifying family member’s life such as:
HEALTH – Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.
FINANCIAL CONSIDERATIONS – Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).
EDUCATION – Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.
PERSONAL CONSIDERATIONS – Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.
SPECIAL FACTORS – Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.
Recent Case Results
April 23, 2012 – Citizen of Mexico receives 212(h) waiver despite crime of possession of a deadly weapon
Facts: A citizen of Mexico had been trying to get a green card for nearly 15 years without any success. Eventually, she was placed in removal proceedings. She came to the firm for help.
The Firm’s Representation: The firm took our client’s case and discovered that her status as a “child” was preserved under the Child Status Protection Act even though our client was now 33 years old. She could adjust, but she needed a waiver based on a 1999 conviction for possession of a deadly weapon which is a crime involving moral turpitude under the INA.
Outcome: On April 23, 2012, in the Immigration Court, the waiver was granted and our client received her green card.
November 28, 2011 – Citizen of France receives U.S. citizenship after receiving 212(h) and 212(i) waivers for material misrepresentation in the Immigration Court and a crime involving moral turpitude
Facts: In 1994, a citizen of France came to the United States. Several years later he was convicted of theft. At about the same time, he married a U.S. citizen and applied for a green card. He got his green card, but never disclosed his theft conviction. He twice applied for citizenship, but was denied each time. In 2010, while returning from trip abroad, he was detained by Customs and Border Patrol and placed in removal proceedings. He sought the firm’s assistance.
The firm’s representation: The firm reviewed our client’s case and saw that he was eligible for a 212(h) and 212(i) waiver based on hardship to his family.
Outcome: On July 22, 2011 the Immigration Judge granted both waivers. The firm is assisting our client with his naturalization process. Our client’s naturalization application was recently approved and he should be a citizen of the United States within 45 days. On November 28, 2011, our client became a proud citizen of the United States.