Eligibility for INA $212(h)

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AILA Practice Advisory

The information in this advisory is accurate as of the date of the advisory. Readers are cautioned to check for new cases and legal developments. This practice advisory is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case.

I. STATUTORY OVERVIEW OF § 212(h).

Q1: What grounds of inadmissibility does § 212(h) waive?

A § 212(h) waiver, if granted, waives the following criminal grounds of inadmissibility:

• crimes involving moral turpitude. INA § 212(a)(2)(A)(i)(I).

• a single offense of simple possession of 30 grams or less of marijuana. INA §§ 212(a)(1)(A)(i)(II) & 212(h).

• multiple criminal convictions where aggregate sentence was 5 years or more. INA § 212(a)(2)(B).

• prostitution and commercial vice activities. INA § 212(a)(2)(D).

• serious criminal offenses involving a grant of immunity. INA § 212(a)(2)(E).

Q2. Who can receive a § 212(h) waiver?

A § 212(h) waiver is available to certain “immigrants” (including specifically VAWA self petitioners) who meet the statutory eligibility requirements and for whom the agency decides to exercise favorable discretion.3

Q3: What are the statutory requirements for a § 212(h) waiver?

First, the person must fit into one of the following categories (see INA § 212(h)(1)):

A. An immigrant charged with prostitution under subparagraphs (i) or (ii) of INA § 212(a)(2)(D), where:

a. subparagraph (i) or (ii) is the sole basis of inadmissibility;

b. admission would not be contrary to national welfare, safety, or security; and

c. the person has been rehabilitated.

B. An immigrant charged with any other criminal ground of inadmissibility that is subject to the waiver, where:

3 This practice advisory uses the term “immigrant” consistent with its use in § 212(h) and throughout the INA. See 8 U.S.C. § 1101(a)(15) (defining the term “immigrant” generally as referring to aliens other than those who fall within specified classes of “nonimmigrant aliens”). Thus, “immigrant” includes both those seeking to immigrate and those who already are LPRs. When the reference is to the LPR category only, the practice advisory will so designate.

2

a. the criminal activities (necessitating the waiver) occurred more than 15 years before the date of the application for a visa, admission or adjustment of status; and

b. admission would not be contrary to national welfare, safety, or security; and

c. the person has been rehabilitated.

C. An immigrant who:

a. is the spouse, parent, or son or daughter of a U.S. citizen or LPR; and

b. establishes that extreme hardship would befall the qualifying relative if admission were denied.

D. VAWA self-petitioners under INA §§ 204(a)(1)(A)(iii) or (iv) or 204(a)(1)(B)(ii) or (iii) (no additional statutory requirements).

Second, the person cannot have been convicted of having committed, attempted or conspired to commit, or have admitted acts that constitute murder or criminal acts involving torture. See INA § 212(h).

Third, “the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien’s applying or reapplying for a visa, for admission to the United States, or adjustment of status.” See INA § 212(h)(2).

Finally, in the case of a person previously granted LPR status, additional restrictions apply. In addition to the three requirements above, a § 212(h) waiver can only be granted to a person previously admitted to the U.S. as an LPR where the LPR:

a. has lawfully resided4 in the United States for not less than 7 years before removal proceedings were initiated;5 and b. has not been convicted of an aggravated felony since becoming an LPR.6

4 In an unpublished decision, the BIA has held that the statute does not require 7 years of continuous residence as an LPR but instead only requires 7 years of continuous residence in any lawful status. In re Afek, No. A45-662-418, 2006 WL 3088766 (BIA Aug. 4, 2006). The BIA went on to hold that a person resides “lawfully” for purposes of § 212(h) if he or she was not subject to being removed as a matter of law during the prescribed period. Id.

5 Notably, unlike cancellation of removal under INA § 240A, the commission of a criminal offense does not cut off the 7 years required for a § 212(h) waiver. Thus, an LPR who is not eligible for cancellation on this basis, or not eligible for § 212© relief (if offense is post-1996), still could be eligible to apply for a § 212(h) waiver.

6 Several courts have considered whether the aggravated felony bar and/or seven year residency requirement violates equal protection insofar as these requirements do not apply to non-LPRs applying for § 212(h). Compare category C, above, with 3

Q4: In what circumstances can a person apply for a § 212(h) waiver?

Persons in the U.S. seeking § 212(h) waivers generally either will apply for the waiver in conjunction with an application to adjust status or as a stand-alone application in removal proceedings. 8 C.F.R. §§ 1212.7(a)(1)(ii)-(iv), 1240(a)(a)(ii). However, a person filing a stand-alone application in removal will also need a basis to avoid removal. Thus, stand-alone § 212(h) waivers are often filed by LPRs returning from a trip abroad, in which case pre-existing LPR status is maintained. Alternatively, stand-alone § 212(h) waivers may be filed by immigrant visa holders, in which case, the waiver must be granted nunc pro tunc which would concurrently render the visa valid.7

An LPR returning from a trip abroad arguably also could apply affirmatively for a § 212(h) waiver to U.S. Customs and Border Patrol. Such an affirmative application would be particularly useful if the person has not yet accrued 7 years of lawful residence in the United States, because otherwise the issuance of the Notice To Appear would cut off the continued accrual of physical presence.

Persons outside the U.S. can apply for a § 212(h) waiver in conjunction with an application for an immigrant visa at a U.S. consulate. 8 C.F.R. § 212.7(a)(1)(i).

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