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 green card, U.S. immigration authorities will not allow you to get one.
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:
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:
Other criminal grounds that are less frequently encountered, and which do not typically require a criminal conviction to make the person inadmissible, include:
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:
You will not be eligible for a waiver if you are inadmissible due to having committed one of the following:
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.
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:
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.
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.
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, consider consulting an attorney for help with your case.