Which Crimes Can Be Waived to Get a U.S. Visa or Green Card?

If you are a foreign-born person who has been convicted of any of certain types of crimes or engaged in certain types of criminal activity (even without having been convicted), you could be inadmissible to the United States. One major effect of that is, even if you otherwise appear to qualify for an immigrant visa and lawful permanent residence (a green card), U.S. immigration authorities will refuse you.

Immigration law does, however, offer a potential way to overcome this. You might be able to apply for a waiver (legal forgiveness), thus making you eligible for U.S. admission, if you meet various eligibility requirements. Because the waiver comes from Section 212(h) of the Immigration and Nationality Act, it is widely referred to as a 212(h) waiver. This article will describe:

• which crimes can be overcome with a 212(h) waiver (and which cannot), as well as
• how to apply for one.

Which Crimes Make a Would-Be Immigrant Inadmissible in the First Place?

Not all crimes will make a person inadmissible to the United States. For example, a traffic ticket for speeding would not make someone inadmissible, because it does not fall within one of the criminal grounds of inadmissibility. For more on this, see Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.

The most frequently encountered criminal grounds of inadmissibility include:

• crimes involving moral turpitude (CIMTs)
• controlled substance violations, and
• multiple criminal convictions.

Other criminal grounds that are less frequently encountered, and which do not typically require a criminal conviction to make the person inadmissible, include:

• controlled substance trafficking
• engaging in prostitution or gambling
• asserting immunity from prosecution in cases involving serious criminal activity
• committing particularly severe violations of religious freedom while serving as a foreign government official
• significant trafficking in persons, and
• money laundering.

Is a 212(h) Waiver Available for Your Crime?

Here's the situation if you are inadmissible under one of the criminal grounds described above.

You might be able to get a waiver if you are inadmissible due to having committed or done one of the following:

• a crime involving moral turpitude (CIMT) with the exception of murder or torture
• two or more crimes with a combined sentence of five years or more (except for murder or torture)
• one offense relating to simple possession of 30 grams or less of marijuana
• prostitution or commercialized vice, or
• claimed immunity for a serious offense (for example, diplomatic immunity), and left the United States, without thereafter being prosecuted in a U.S. court for that offense.

You will not be eligible for a waiver if you are inadmissible due to having committed one of the following:

• any drug crime (other than an offense related to simple possession of 30 grams or less of marijuana)
• drug trafficking
• murder or torture
• significant trafficking in persons
• money laundering, or
• a particularly severe violation of religious freedom while serving as a foreign government official.

Details on When a 212(h) Waiver Can Be Used to Forgive Marijuana Possession

If you were convicted of a single offense of simple possession of 30 grams or less of marijuana, you fall into the only category of controlled substance violators who might be eligible for a waiver of inadmissibility. So, for example, if you have one conviction for possession of 20 grams of marijuana, you might be eligible to apply for a waiver if you meet the other requirements.

You might also be eligible to apply for a waiver if your conviction was related to a single offense of simple possession of 30 grams or less of marijuana. For example, if you were convicted of possessing drug paraphernalia that would be used with a minimal quantity of marijuana (like a marijuana pipe), you might be eligible to apply for a waiver.

Do You Meet the Requirements to Get a 212(h) Waiver Approved?

If you are inadmissible because you committed one of the crimes for which a waiver is available, you will need to fall into one (and only one) of the following categories, and meet certain additional requirements, in order to actually qualify for the waiver:

• If the crime you are seeking a waiver for relates to prostitution: In this case, you will also need to show that you have been rehabilitated (have turned your life around so that you no longer commit such crimes) and that your admission is not contrary to the welfare, safety, or security of the United States. (Security violations cannot be waived.)
• If more than 15 years have passed since you committed the crime. Here, too, you will need to show that you have been rehabilitated and that your admission is not contrary to the welfare, safety, or security of the United States.
• If you are a Violence Against Women Act (VAWA) self-petitioner. That means you have filed for a family-based green card on your own, without help from a noncooperative U.S. spouse or parent who has been abusing you.
• If you have a "qualifying relative" who would experience extreme hardship if you were not admitted to the United States. A qualifying relative means a spouse, parent, son, or daughter who is a U.S. citizen or lawful permanent resident. U.S. immigration officials consider a variety of factors to decide whether your qualifying relative would suffer extreme hardship, such as medical, financial, educational, personal, and physical concerns.

Why It's Difficult to Obtain a Waiver of Violent or Dangerous Crimes

A record of committing violent or dangerous crimes makes it very hard—but not impossible—to get a waiver of inadmissibility. What makes a crime violent or dangerous often requires in-depth analysis. If you have been convicted of a violent or dangerous crime, you will have to show "extraordinary circumstances" in order to qualify for a waiver.

Demonstrating that your case involves extraordinary circumstances is not easy. This means that national security or foreign policy considerations are present in your case, or that denial of your application would result in exceptional and extremely unusual hardship, which must generally be to a qualifying relative. If there is any chance you were convicted of a violent or dangerous crime, definitely contact an attorney for help with your case.

Aggravated Felonies Might Not Be an Absolute Bar to a Green Card

Various categories of serious criminal offenses are labeled in the Immigration and Nationality Act (at I.N.A. § 101(a)(43)) as "aggravated felony" offenses. Such offenses are treated quite seriously, and can lead to inadmissibility.

However, the mere fact that you have been convicted of an aggravated felony does not automatically mean that you are inadmissible and barred from receiving a U.S. green card. Many aggravated felony offenses are also categorized as crimes involving moral turpitude. This is particularly relevant because under I.N.A. § 212(h), crimes involving moral turpitude are specifically listed as ones that can be waived.

Nevertheless, if you have a violent or dangerous crime on your record it will be very difficult to have a waiver approved on your behalf.

How to Apply for a 212(h) Waiver

To apply for a waiver of a criminal ground of inadmissibility, you will need to submit Form I-601 to U.S. Citizenship and Immigration Services. See How to Prepare Form I-601 to Request a Waiver of Inadmissibility.

If you are required to show extreme hardship to a qualifying relative, be sure to include documents detailing the hardship your qualifying relative would suffer. This could take the form of affidavits, financial documents, medical records, expert opinions, evidence of employment ties, evidence of involvement in community activities, evidence of family ties, country condition reports, and anything else showing that your qualifying relative would suffer hardship if you are not admitted to the United States.

Getting Legal Help

As you can see, deciding whether a particular criminal inadmissibility ground applies and whether a waiver is available to you is a complicated process. If you think you need a waiver, strongly consider consulting an attorney for help analyzing your case and preparing written legal briefs and arguments to present to U.S. immigration authorities.