Two Common Waivers of Inadmissibility: the 212(i) Fraud Waiver and the 212(h) Criminal Waiver

Feb 20, 2015 | 212(H) Fraud Waiver

Basics on Waivers of Inadmissibility: Essential Guide for Law Firms

Struggling with complex waiver of inadmissibility cases?

Imagine turning these challenges into opportunities for your law firm.

Mastering the basics on waivers of inadmissibility can elevate your practice, leading to more successful outcomes, increased client satisfaction, and a stronger reputation.

In this article, we dive deep into everything you need to know about waivers of inadmissibility, from eligibility criteria to the application process.

Ready to boost your expertise and attract more clients? Read on to discover how.

Eligibility Criteria for Adjustment of Status

Inadmissibility is a concept that many Miami immigration lawyers grapple with.  First, some basics about this particular topic.

What does it mean to be “inadmissible?”
If you are deemed “inadmissible” by the United States government, it means that you have been given the designation that you are not eligible to receive a visa, or to be granted admission to the United States. This designation applies regardless of whether or not you are currently in the United States.

If you have been deemed “inadmissible” by the United States, I would first suggest that you speak with a Miami immigration lawyer to discuss your options. There are many reasons that make a person inadmissible. These reasons are called grounds of inadmissibility.

Under section 212(a)(6)(C)(i) of the Immigration Naturalization Act (INA), an alien who, “by fraud or willful misrepresentation of a material fact, seeks to procure, has sought to procure, or has procured a visa, other documentation, or admission into the United States or other benefit provided under the Act, is inadmissible.”

What is a 212 (i) waiver?
Under current immigration statute, the immigrant may qualify for a 212(i) fraud waiver if refusal of admission to the United States of the alien would result in extreme hardship to the citizen or lawful resident spouse or parent of the alien.

What are some examples of fraud?
Some examples of fraud include, but are not limited to the following – using a photo-switched passport to enter the United States, giving false information to an immigration official, and/or providing false information on an immigration form.

What are the eligibility standards?
The short answer is; a) The alien must have a “qualifying relative” and; b) adequately demonstrate to the  USCIS that if they are not granted lawful permanent resident status, their qualifying relative will suffer extreme hardship.

I should mention at this juncture that each case is different, and proving one’s case to the USCIS will involve a fair amount of knowledge of the requirements under Section 212 in order to qualify for relief under a 212(i) fraud waiver. It would be in your best interests to speak with a Miami immigration lawyer to discuss your options. It is in your best interest to have a lawyer write a legal brief in support of your waiver with appropriate exhibits.

What is the 212(h) criminal waiver?
The 212(h) criminal waiver provides a waiver of inadmissibility for some criminal violations.

Again, if you have been deemed inadmissible by the United States government due to past criminal violations, I would strongly suggest that you speak with a Miami immigration lawyer to discuss your options.

What grounds of inadmissibility does § 212(h) waive?
If granted, the 212(h) criminal waiver will waive the following grounds for inadmissibility:

  •  Crimes involving moral turpitude
  • A single offense of simple possession of 30 grams or less of marijuana
  • Multiple criminal convictions where aggregate sentence was 5 years or more
  • Prostitution and commercial vice activities
  • Criminal offenses involving a grant of immunity

Remember, there is no guarantee that your 212(h) waiver will be granted, as the applications are adjudicated as a matter of discretion. You are encouraged to discuss your options with a Miami immigration lawyer.

Do I qualify for a 212(h) criminal waiver?That depends. A 212(h) waiver is available to certain individuals who meet the statutory eligibility requirements. By its terms, INA § 212(h) will only waive the inadmissibility grounds relating to: Crimes involving moral turpitude (no limit to the number of offenses);

  • Engaging in prostitution;
  • A single conviction for simple possession or being under the influence of 30 grams or less of marijuana, or an equivalent amount of hashish;
  • Conviction of two or more offenses of any kind with an aggregate sentence imposed of at least five years; or
  • Asserting immunity against prosecution of a serious crime.

In addition, the § 212(h) applicant must be:

  • A spouse, parent, son or daughter of a U.S. citizen or permanent resident who will face extreme hardship if the applicant is removed;
  • A VAWA self-petitioner;
  • Inadmissible only under the prostitution ground; or
  • Inadmissible based upon a conviction or event that took place more than 15 years before the current application. In these last two categories the applicant must prove that she is rehabilitated and her admission is not contrary to U.S. interests.

Section 212(h) is granted as a matter of discretion. If the conviction to be waived was of a “dangerous or violent” offense, the applicant must meet an extraordinarily high standard in order to win a discretionary grant.

I am a Lawful Permanent Resident. Does this mean that I will not get deported?
No. If you are a lawful permanent resident, and you have committed an aggravated felony, or have not been a resident for at least seven years before being placed in removal proceedings, you do not qualify for relief under 212(h).  If you are currently in removal proceedings and are a lawful permanent resident, I strongly suggest that you speak with a Miami immigration lawyer to discuss your options.

If you think would like more information on the 212(i) fraud waiver, or the 212(h) criminal waiver, please contact Miami immigration attorney The Law Office of Tatiane M. Silva, P.A., Esq. at (305)895-2500 or visit our website at www. .