CRIMINAL CONVICTION WAIVERS

INA §212(h)-Criminal Conviction Waiver Checklist

Certain criminal conviction or convictions can be waived or pardoned under §212(h), and this waiver can be filed with an application for adjustment of status, can be filed in immigration court, but may also be presented at a US Consulate if applicant is not in the country. Fingerprint rap sheets need not be obtained because biometrics is part of the application process. They may be useful however when a full record is not known by applicant. Under 8 CFR 212.7(a)(4), an approved waiver is only valid for those crimes, events, or incidents specified in the application for a waiver so be sure to advise our office of all convictions

You can obtain a 21(h) waiver for

(1) crimes of moral turpitude, except murder and torture;

(2) commission of more than one crime;

(3) prostitution;

(4) diplomats who assert immunity; and

(5) a SINGLE offense of simple possession of 30 grams or less of marijuana.

You cannot qualify for a waiver if you have a more serious drug conviction or if you have been found guilty of an aggravated felony.

Eligibility:

This waiver can be based on hardship to your self if it has been 15-years since any conviction; or 

• Must have spouse, child, or parent who is a United States Citizen or Lawful Permanent Resident;
• Must show extreme hardship to the US Citizen or Lawful Permanent Resident parent, child, or spouse (or to self for VAWA self-petitioner);
• Must merit positive exercise of discretion.

Extreme Hardship defined

The elements of extreme hardship can include any factors that will cause your relative to suffer.  We begin by looking at 8 Code of Federal Regulations §1240.58, which lists 14 factors that may be considered in evaluating whether deportation would result in extreme hardship.

• age, both at the time of entry to the United States and at the time of application for waiver;
• age, number, and immigration status of your spouse and children and their ability to speak the native language and to adjust to life in the country of return;
• health condition of the applicant, the children, spouse, or parents, and the availability of any
• required medical treatment in the country to which the client would be returned;
• ability to obtain employment in the country to which the applicant would be returned;
• the length of residence in the United States, both legal and illegal;
• the existence of other family members who are, or will be, legally residing in the United States;
• the financial impact of the applicants’s departure on family;
• the impact of a disruption of educational opportunities for the applicant, his or her children, and spouse;
• psychological impact of applicants’s deportation on family;
• current political and economic conditions in the country to which the applicant would be returned;
• family and other ties to the country to which the applicant would be returned;
• contributions to and ties to a community in the United States, including the degree of integration into society;
• immigration history, including any authorized stay in the United States;
• cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm or injury;social ostracism or stigma; access to social institutions or structures

Exercise of Discretion defined

The applicant must show that he/she has remorse for their past actions and that they have made successful efforts to become rehabilitated.