What Is a 212(h) Waiver?

What Is a 212(h) Waiver?

A 212(h) waiver is a waiver that’s generally used in conjunction with adjustment of status. You can use it alone if you’re somebody who’s a green card holder and traveling into the United States and placed into removal proceedings. Either way, the standard is the same. It’s generally used for people who have criminal convictions and are inadmissible to the United States. What I mean by inadmissible is they are physically here in the United States, but they haven’t been admitted in any status. They are seeking admission. If I am a visitor and I want to apply for a green card, I’m seeking admission, knocking on the door, applying for a green card.

If there’s any reason that makes me inadmissible to the United States, such as a criminal conviction, I need to ask for a waiver or a pardon from immigration to allow them to let me in. A 212(h) waiver is done on a form I-601. You have to demonstrate that it would be an extreme hardship to a parent, child, or spouse who’s either a U.S. citizen or lawful permanent resident. If you can demonstrate that it’s an extreme hardship to any one or all of those people, then the judge or the immigration service has to look at discretionary factors to see whether or not the person should be allowed to stay in the United States.

Keep in mind, 212(h) can be done with a green card application. If you have never been in removal proceedings and you have a criminal conviction, and are eligible for a green card but for this crime, you can apply for a green card with a 212(h) waiver. You do need to be mindful that if the 212(h) waiver is denied by immigration, you could be placed into removal proceedings. That’s a conversation you need to have with an experienced immigration lawyer to let you know the dangers of being detained and the possibility of winning if you were placed into removal proceedings.

In your 212(h) waiver, you’re going to want to show that: a) it’s a hardship to your family members, and b) that you deserve the waiver in discretion. Things that they will look at are your length of residence in the United States, your family ties, the hardship to you if you’re not allowed to stay, the hardship to your family if you’re not allowed to stay, and your employment history, They are going to look at the country that you’re returning to, so if it’s a Third World country that’s completely different than the United States and you haven’t been there since you were five years old, it’s going to make the case much stronger. Then they’re going to also look at your rehabilitation; are you a person who’s going to go back out and commit another crime. The last thing immigration wants, or an immigration judge, as you can imagine, is to be placed on the cover of the New York Post for giving you a green card and then the person goes out and commits another crime.

You are going to have to demonstrate all of this if you are applying for immigration through a green card on paper or if you are applying through an immigration judge, both on paper and through testimony, which, believe it or not, sometimes can be a lot easier than just on paper. A 212(h) waiver will waive your ground of inadmissibility, in general, for criminal activity, if it can.

Keep in mind, you can never waive drugs under a 212(h) waiver. If you do not have a green card and you’ve been convicted of a drug offense, other than 30 grams of marijuana, you will never be eligible for a green card based on family or employment. Be careful of that when you’re discussing your options with a criminal lawyer; it’s important to discuss it with an immigration lawyer.

If you have questions about a criminal conviction you have in the past or a criminal conviction that’s currently pending and your eligibility for adjustment and/or a 212(h) waiver, please contact my office. They’re not easy cases to win, but they’re certainly winnable and we we’d love to help you with your case.

The Law Office of Cheryl David is an experienced law firm, dealing with immigration cases throughout NYC. Contact the office if you have any questions and set up your free initial consultation.