212(h) waiver

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What should you know about waivers under 212 (h)?

Many people believe that a past mistake immediately makes them deportable or ineligible to live in the US. This is far from true. What if the government removes you under INA 212 (a) (9)? Can you apply for a waiver? The answer is: yes, under certain circumstances, you can apply for waivers under 212 (h).

And if you have a criminal record that makes you ineligible or deportable? Still, certain provisions allow you to receive a waiver.

Here, we will clarify what the 212 (h) waiver is.

In short, any deportable or ineligible non-citizen or LPR that does not qualify for LPR cancellation should consider the 212 (h) waiver. In fact, if we compare the 212 (h) waiver and the cancellation of removal, waivers under 212 (h) are likely a better choice because you can apply multiple times. (We have represented clients with multiple 212(h) waivers and LPR cancellation of removal under INA 240A(a): yes, it is possible to beat deportation twice!)

Requirements for a 212 (h) waiver

First, at a procedural level, you can apply for waivers under 212 (h) if one of the following status apply to you:

  • An applicant for LPR status through an American consulate
  • Immigrant visa holder seeking admission after consular processing
  • LPR applying for admission into the US and considered to be seeking a new admission after your return
  • Affirmatively applying for adjustment of status (Form I-485)

Also, consider the kind of criminal record that makes you inadmissible but allows you to apply to 212 (h) waivers:

  1. One or more crimes involving moral turpitude.
    1. Prostitution.
    2. Two or more convictions leading to a total sentence of five or more years.
    3. One incident involving possession of 30 grams or less of marijuana or related marijuana offenses without other drug offenses.

Note: if your conviction is also an aggravated felony under INA 101(a)(43) – generally, no waivers under 212 (h) are available! (But see further discussion, below). However, you still may be eligible for other forms (s) of relief, depending on factors such as the date of your conviction, post-conviction relief, or fear of torture in your home country.

Eligibility criteria

If you fall among one of the four above-mentioned categories, you are one step closer to being eligible for waivers under 212 (h). Moreover, there are four main types of 212 (h) waiver eligibility criteria:

The 212 (h) waiver 15-year rule. This applies if:

The incident(s) occurred at least 15 years ago.

You can prove you are rehabilitated.

Admitting you would not be contrary to national interests.

Extreme hardship. You have a USC or LPC parent, spouse, or child that would suffer extreme hardship due to your removal.

Prostitution. This applies if:

You are inadmissible only on the grounds of prostitution.

You can prove that you are reformed.

Admitting you is not contrary to national interests.

Battered spouse. This applies if you:

  • Are a VAWA self-petitioner.
  • Were battered or suffered from extreme cruelty and your spouse is an LPR or American citizen.
  • There is also another type of waiver known as standalone 212 (h) waiver to waive a ground of deportability. Sometimes, someone with past a conviction of an aggravated felony can apply for a standalone 212 (h) waiver. For example, aggravated felonies such as theft, counterfeit, and other white-collar crimes usually receive it. However, it only applies if the applicant adjusted to LPR status while in the US. Still, is one of the best options available in this case.

How to support your 212 (h) application?

Yet, you should be wary that 212 (h) waivers are discretionary. Even if you qualify for it, this does not mean you will receive the waiver. Nevertheless, certain supporting documents can increase your possibilities of receiving waivers under 212 (h), whether it is a stand-alone, a controlled substance 212 (h) waiver, or another type. For example, you can include:

Affidavits from family, friends, and co-workers who confirm your good moral character and good standing in your community.

A statement of motives to return or remain in the US.

Proof of rehabilitation, such as community involvement, education, employment, psychological counseling.

Evidence of extreme hardship (if applicable).

An attorney affidavit of the quantity of marijuana for your 212 (h) waiver.

Still, even if it is discretionary, the 212 (h) waiver is a real possibility to avoid deportation or inadmissibility. More importantly, it may be your only shot at staying in the United States and beating deportation. But you have to get it right the first time – you cannot afford to make mistakes.

An experienced attorney can help you protect the entire life you’ve built in the United States. What value would you place on the rest of your life?

Do yourself a favor and let us help you. Contact us right now for a consultation!

Reach out to us by jumping on a call, or filling our contact form!

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