PHAM & CLOVES, PLLC

INA Section 212(h) – Exclusion Waiver on Certain Criminal Grounds

A conviction of certain criminal crimes, including “deferred adjudication” or “nolo contender,” such as an aggravated felony or a crime involving moral turpitude, would render a foreign national removable (deportable).  In addition, a criminal conviction, even on a lesser ground, may prohibit the ability for that person to obtain a visa at the consular office abroad or at the port of entry with the U.S. Custom and Border Protection.  However, there are two waivers that are available for most criminal convictions.  The Houston Texas Inadmissibility Waiver Attorneys (I-601) and the U.S. Immigration Criminal Conviction Waiver Lawyers at Veritas Legal Group will assist you in preparing and filing your immigrant and nonimmigrant visa waivers.  Foreign nationals who entered the country without inspection (EWI), over-stayed your visas or those that are out of status, and those that criminal convictions should consult with an experienced immigration attorney prior to leaving the U.S. or seeking entry.  The following texts are information regarding waivers applicable to criminal convictions.  To understand waivers based on other grounds of inadmissibility, please see my previous blog on this issue or visit our website.

Foreign Nationals Who Are Eligible For a Section 202(h) Waiver

With the exceptions of murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture, waivers are available for most criminal grounds of exclusion under INA §212(h)(1). Note, 212(h) waivers are only applicable to “immigrant applicants;” and thus, only those that are beneficiaries of an immigrant petition are allowed to file for 212(h) waivers.  Immigrants or immigrant applicant are beneficiaries of family-based immigrant petitions or through employment-based immigrant petitions and permanent residents.  As stated, no waiver is available for murder, criminal acts involving torture, or convictions of trafficking of controlled substances, unless the drug trafficking crime is a single offense involving the simple possession of 30 grams or less of barbiturates (marijuana). In addition to the above, no waiver shall be granted in the case of a permanent resident if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for at least 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States.

Waivers That Are Available For Criminal Convictions 

Under INA §212(h)(1), there are two waivers available for foreign nationals who have criminal convictions. A 212(h)(1)(A) waiver is available under if the immigrant establishes that:

• The criminal conviction or act that makes the alien is excludable occurred more than 15 years before the date of the alien’s application for a visa, entry, or adjustment of status.  The exception to the 15 years requirement is if the foreign national is excludable for prostitution under INA §212(a)(2)(D)(i) or INA §212(a)(2)(D)(ii).
• In addition, the admission to the U.S. of such alien would not be contrary to the national welfare, safety, or security of the United States its citizens.
• Finally, the alien must demonstrate that he or she has been rehabilitated.

Under INA §212(h)(1)(B), a waiver is also available for close family members if the immigrant establishes that he or she is the spouse, parent, son or daughter or a United States citizen or an alien lawfully admitted for permanent residence and that the alien’s exclusion would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son or daughter of such alien. Extreme hardship is different from normal hardship. Separations from immediate family members are considered to be normal hardship.  Extreme hardships may include, but are not exclusive to:

• Medical needs and the inability to provide such care in the home country to the U.S. citizens and permanent residence immediate family members;
• Loss of education and economic opportunities for U.S. citizens and permanent residence immediate family members;
• Inability to financially support dependents, including elder parents, spouses, and children who are U.S. citizens and green-card holders;
• Language and cultural barrier for U.S. citizens and permanent residence immediate family members;

  Section 212(h) Waivers Are Discretionary by the U.S. Attorney General

Finally, the INA Section 212(h) waivers are in the discretion of the Attorney General (including the Board of Immigration Review and the Immigrant Court (Executive Office of Immigration Review).  A denial by the immigration court and affirmation of same by the Board of Immigration Appeals shall be final.  No federal court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver.

Contact the Houston Texas Criminal Conviction Waiver Lawyers and the U.S. Inadmissibility Waiver Attorneys at Veritas Legal Group for further information and assistance.  Veritas Legal Group is a Houston-based Immigration Law Firm.  Our U.S. Immigration Attorneys and our U.S. Consular Application Lawyers have assisted numerous clients in preparing and filing immigration benefits.  Our Houston Texas I-212 Application Lawyer and our Houston Texas 212(h) Inadmissibility Waiver Attorneys can be reached at 832-484-9015 or through online inquiry.