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What is a 212(H) Waiver?

What is a § 212(H) Waiver?

The § 212(H) waiver is intended to assist applicants with certain types of criminal backgrounds who might otherwise be ineligible for legal status in the U.S. This waiver can be helpful for a number of different types of applicants including: 1) those seeking immigrant visas at a U.S. consulate; 2) those seeking adjustment of status (with USCIS in the United States); 3) returning lawful permanent residents who are in removal proceedings; and 4) lawful permanent residents charged with deportation in removal proceedings.

There are two types of 212(H) waivers:

The 15-Year Waiver

This type of waiver is what is sounds like. If the applicant’s offense occurred more than 15 years prior to the date of the application if the applicant’s admission would not be contrary to the national safety, or security of the U.S.; the applicant has been rehabilitated; and a waiver is warranted as a matter of discretion.

The Extreme Hardship Waiver

The second type of waiver is available regardless of when the offense occurred. In this case, the applicant must demonstrate that a denial of his or her admission to the U.S. would cause “extreme hardship” to a qualifying relative and that a visa, admission, or adjustment of status is warranted as a matter of discretion. In this context, the Board of Immigration Appeals interprets “extreme hardship” quite narrowly in most cases.

Am I Eligible to Apply for a § 212(H) Waiver?

A § 212(H) Waiver can potentially waive any of the following types of offenses:

1. Crimes Involving Moral Turpitude (for example an offense involving an intent to defraud) or an attempt or conspiracy to commit such a crime;


2. Multiple Criminal Convictions: A conviction of two or more offenses for which the aggregate sentences to confinement were five years or more;


3. Prostitution and Commercialized Vice: Had sought to come to the United States to engage in certain prostitution-related activities or other unlawful commercialized vice;


4. Serious Criminal Activity for Which Immunity was Granted: The commission of a “serious criminal offense” for which immunity from prosecution was exercised, and as a result of the exercise of immunity, the applicant had departed from the United States; and


5. Controlled Substance Violations: A violation of (or a conspiracy or attempt to violate) any law or regulation relating to a controlled substance, but only to the extent the offense relates to a single offense of simple possession of 30 grams or less of marijuana.


Conclusion

It is important to note that § 212(H) waivers are discretionary, meaning that they are subjective and up to the person reviewing your waiver request. However, they can be very useful in appropriate cases. Martinez Immigration has special expertise in these types of waivers, particularly for difficult waivers. If you think you may be qualified to apply for this waiver, Martinez Immigration can help you through the application process. If your application is denied or you end up not being eligible for some reason, we can counsel you on other immigration options.


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