Waivers under INA §212(h)
Waivers under INA §212(h)
The Immigration and Naturalization act (INA) contains many waivers. The main goal of these waivers is to allow long time residents of the United States, or persons with strong ties to remain in the United States. One of these waivers is a waiver under INA §212(h). This waiver is applicable to several grounds of inadmissibility under the INA, including:
- Inadmissibility under INA §212(a)(2)(A)(i)(I) relating to crimes involving moral turpitude
- Inadmissibility under INA §212(a)(2)(A)(i)(II) offenses relating to possession of less than 30 grams of marijuana
- Inadmissibility under INA §212(a)(2)(B) relating to more than one criminal conviction
- Inadmissibility under INA §212(a)(2)(D) relating to prostitution
- Inadmissibility under INA §212(a)(2) (E) assertion of immunity from prosecution
There are three waivers under INA §212(h):
- Waiver under INA §212(h)(1)(A) relating to prostitution or the crime for which the immigrant is inadmissible occurred more than 15 years ago
- Extreme hardship waiver for criminal grounds if the immigrant’s United States citizen or lawful permanent resident qualifying relatives would endure extreme hardship under INA §212(h)(1)(B)
- Waivers for self-petitioners under the Violence Against Women Act under INA §212(h)(1)(C)
Prostitution and Crimes More than 15 Years Old under INA §212(h)(1)(A):
This waiver is available for persons who are inadmissible INA §212(a)(2)(D) for prostitution or for crimes that occurred more than 15 years ago. In these two cases, the immigrant does not have to show hardship to a qualifying relative. The immigrant has to show that he has been rehabilitated and his admission would not be contrary to the national interest of the United States.
Marijuana Possession Waiver Under INA §212(h):
There is a limited waiver of inadmissibility under INA §212(h) for marijuana possession of less than 30 grams of marijuana. The amount of marijuana involves a circumstance specific inquiry and not a categorical inquiry. Matter of Martinez-Espinoza, 25 I&N Dec. 118, 124 (BIA 2009). Convictions for drug paraphernalia must relate to the possession of less than 30 grams of marijuana to be waiver under INA §212(h).
Violence Against Women Act (VAWA) Self-Petitioners Waiver Under INA §212(h):
Under INA §212(h)(1)(C), self-petitioners under the Violence Against Women Act may apply for a waiver. This waiver applies for the grounds covered under the grounds of inadmissibility mentioned above. The immigrant does not have to show extreme hardship in this case.
Heightened Standard for discretion under INA §212(h):
The INA §212(h) waiver is highly discretionary. There is a heightened standard of discretion for immigrants convicted of violent or dangerous crimes under 8 CFR §§212.7(d) and 1212.7(d). This standard is very hard to meet and the immigrant must show that the hardship would occur to his qualifying relatives or himself. This heightened standard has been applied in the following cases:
- Armored robbery
- Sexual abuse of a minor
- Lewd and lascivious act upon a child
- Aggravated assault
- Armed robbery with a firearm
- Burglary of a dwelling and resisting officer with violence
Once this standard is applicable, then the applicant must show this hardship.
There are several bars to relief under INA §212(h). First, a lawful permanent resident who has been convicted of an aggravated felony is ineligible while a non-LPR may qualify. Another limitation is the requirement that a lawful permanent resident had continuously resided in the United States for seven years before the application for the waiver.
Applications for permanent residence are very important. Convictions of the crimes mentioned above may have serious consequences on the ability to obtain such status. Call us today to discuss your application, especially if the above discussion applies to you.
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