INA §212(h): A Waiver for Crimes More than 15 Years Old, Crimes of Moral Turpitude, Simple Possession of Marijuana, and Prostitution
Legacy Immigration handles our clients’ waiver cases differently than many other law firms. Our submissions comprise a two-fold strategy: We prepare a legally sound argument (50%) and combine it with an emotionally persuasive fact-based argument (50%). So half of our filing is dedicated to arguing case law, statutory intent, record of proceeding for the conviction(s), etc. The other half of our filing is dedicated to showing the adjudicator that our client is human and has made mistakes for which he or she is regretful. We also include a discretionary argument since a waiver is a discretionary benefit (the adjudicator does not have to approve the case even if the foreign national meets all of the factors under the law).
We use the clients’ specific facts to show that the convictions were limited to a specific time in our clients’ lives and will not occur again because our client is rehabilitated. But merely stating the above in an affidavit or declaration is never enough. We have to prove it through documentation. This is the challenging part of waiver cases.
The §212(h) waiver is helpful for foreign nationals that are applying for: 1) immigrant visas (at a U.S. consulate); 2) 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.
To qualify for a §212(h) waiver, a foreign national must prove one (1) out of the four (4) following criteria:
1.The foreign national is inadmissible only for engaging in prostitution or procuring or attempting to procure prostitutes; admission would not be contrary to the national welfare, safety or security; and the person has been rehabilitated; or
2.The criminal activities that render the foreign national inadmissible occurred more than 15 years before the date of his or her application for a visa, admission, or adjustment of status; admission would not be contrary to national welfare, safety, or security; and the foreign national has been rehabilitated; or
3.The foreign national is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident and can prove that denial of his/her admission would cause extreme hardship to the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident; or
4.The foreign national is a battered spouse or child of a U.S. citizen or lawful permanent resident.
Each of the above-mentioned criteria has its own legal burden to prove. The third criterion requires proving “extreme hardship” to a qualifying relative. The Board of Immigration Appeals interprets “extreme hardship” very narrowly.
Likewise, the first and third criteria require proving that the foreign national has “been reformed or rehabilitated” and that his/her “admission would not be contrary to the national welfare, safety, or security of the United States.”
When a client comes to meet with us, look for only one thing: can our client prove that the positive factors outweigh the negative factors under the law.
How We Can Help
- It is important, that before we begin the waiver process, to see if the crime really makes the applicant inadmissible. We will review the criminal-related file including the indictment/statement of charges, police report, witness statement, conviction documents, etc.
- If our client pled guilty and was not advised of the immigration consequences associated with his or her guilty plea, we will conduct a review to see if the conviction can be reopened under The U.S. Supreme Court’s ruling of Jose Padilla v. Kentucky.
- We will help prepare the applicant’s declaration. The declaration will serve as our client’s “voice” and will give him or her the opportunity to explain the circumstances going on in the foreign national’s life at the time of the commission of the crime (thereby making the adjudicator stand in our client’s shoes). This single document is sometimes the most compelling and persuasive document in the entire filing because it is an explanation of the case from our client’s point of view.
- We will go through our client’s entire history (how he/she was raised, what it was like acclimating to life in the U.S., etc.) to find specific facts (no matter how small) that might help the adjudicator understand why our client committed the crime.
- We will work with the client to provide documentation that the crime was limited to a one-time occurrence and that our client will not commit another crime because he or she is reformed.
- We will prepare and submit a sound legal argument that is persuasive and warrants a favorable exercise of discretion.
Please give us a call to discuss your case. In-person consultations are available Monday through Friday from 8:00 am to 8:00 pm and Saturdays from 8:00 am to 5:00 pm. Please call our office at 301-529-1912 , text us, submit a request for consultation form below.
Please be sure to provide a timeline of events along with details of your entire immigration history.