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

Some, but not all crimes, can be overcome as grounds of inadmissibility by applying for a waiver.

If you have been convicted of any of certain types of crimes or engaged in certain types of criminal activity (even without having been convicted), you may be inadmissible to the United States. That is, U.S. immigration authorities will not allow you to get a green card or an immigrant visa even if you otherwise appear to qualify for one.

But if you are inadmissible, you may be able to apply for a waiver (legal forgiveness, thereby 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 may be overcome with such a waiver.

Which Crimes Make You 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, 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?

Even if you are inadmissible under one of the criminal grounds described above, you may still be able to apply for a waiver as follows.

You may be able to get a waiver if you are inadmissible for one of the following:

  • a crime involving moral turpitude (except for murder or torture)
  • two or 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
  • having committed a serious criminal offense, claimed immunity for that 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 for 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
  • having committed a particularly severe violation of religious freedom while serving as a foreign government official.

Details on Availability of 212(h) Waiver for 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 may be eligible for a waiver of inadmissibility. So, for example, if you have one conviction for possession of 20 grams of marijuana, you may be eligible to apply for a waiver if you meet the other requirements.

You may 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 may be eligible to apply for a waiver.

Do You Meet the Requirements for a 212(h) Waiver?

If you are inadmissible for 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 qualify for the waiver:

  • 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.)
  • 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.
  • You are a Violence Against Women Act self petitioner, or
  • You have a “qualifying relative” who would experience extreme hardship if you are 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 may consider a variety of factors to decide whether your qualifying relative would suffer extreme hardship, such as medical, financial, educational, personal, and physical concerns.

Difficulties Obtaining 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. 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.

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 may 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.

Talk to a Lawyer

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
NEED IMMIGRATION HELP ?

Talk to an Immigration attorney.

We've helped 85 clients find attorneys today.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you