Waivers

INTRODUCTION

Waivers permit a non-citizen to excuse actions that cause the non-citizen to be inadmissible to the United States. An addition, certain waivers excuse certain actions that caused a green card holder to be deportable. Waivers are available before USCIS and the Immigration Court.

212(h) Waiver (criminal conviction waiver of inadmissibility)

The most commonly used waiver for criminal conduct is known as the 212(h) waiver. This waiver is used in the adjustment process to waive past criminal conduct that makes an applicant inadmissible under § 212 of the INA. In order to qualify for a 212(h) waiver you must prove the following elements:

  • Extreme hardship to spouse, parent, or child of a citizen or legal permanent resident of the United States
  • If green card holder, then you must have been residing in the US for not less than 7 years
  • Crime cannot be classified as aggravated felony

212(h) waives crimes that make an alien inadmissible under § 212(A)(i)(I), (B), (D), and (E) or subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana. The 212(h) waiver is filed on the form I-601, typically in conjunction with your application for adjustment of status.

212(i) Waiver (immigration fraud waiver of inadmissibility)

This waiver is used to waive grounds of inadmissibility related to fraud in connection to the immigration process. To qualify for the 212(i) wavier you must prove the following:

  • Extreme hardship to spouse or parent of a citizen or legal permanent resident of the United States

212(i) waives conduct that make a alien inadmissible under § 212(a)(6)(C). Generally, this covers any false use of documents such as fake social security cards, employment documents, and passport misuse. It could also encompass any criminal conduct related to fraud.

Please note that the 212(i) waiver does not include children as qualifying relatives for hardship. Children are included if the 212(i) waiver is made in adjusting under “Battered Spouse” provisions.

The 212(i) waiver is filed on the form I-601, typically in conjunction with your application for adjustment of status.

212(a)(9)(B) Waiver (illegal presence waiver of inadmissibility)

This waiver is used to waive grounds of inadmissibility related illegal presence in the United States. If you have been in the United States for more than 180 days and you did not have a legal status and you exited the United States, you will have a three year bar to return to the United States. If your illegal presence was over one year, then you will have a ten year bar to return to the United States.

To qualify for the 212(a)(9)(B) wavier you must prove the following:

  • Extreme hardship to spouse or child of a citizen or legal permanent resident of the United States

I-212 Permission to reapply (after deportation)

If you were previously removed from the U.S. are inadmissible and may not be re-admitted to the U.S. for a specified period of time. However, you may apply for permission to reapply for admission. Permission to reapply for admission is applied for by submitting a From I-212 together with the appropriate supporting documentation and filing fee.

You may apply for an I-212 waiver in conjunction with an immigrant or nonimmigrant visa application. In many instances, you may seek permission to reapply for admission in conjunction with the filing of a waiver application based on a specific ground of inadmissibility. The I-212 application, if granted, would waive the prior removal.

There are no prerequisites such as a qualifying family member. Applications are considered on a case-by-case basis, and all relevant factors are considered, such as:

  1. The basis for deportation
  2. Recency of deportation
  3. Length of residence in the U.S.
  4. Moral character of the applicant
  5. The Applicant’s respect for law and order
  6. Evidence of reformation and rehabilitation
  7. Family responsibilities of applicant
  8. Inadmissibility to the U.S. under other sections of law
  9. Hardship involved to applicant and others
  10. The need for services in the U.S.

237(a)(1)(H) Waiver (immigration fraud waiver of deportability in the Immigration Court)

This waiver is used to waive grounds of inadmissibility related to fraud in connection to the immigration process. To qualify for the 237(a)(1)(H) wavier you must prove the following:

  • that the applicant is the spouse, parent, son or daughter of a citizen or legal permanent resident of the United States; and
  • that the applicant was in possession of an immigrant visa or equivalent document and was otherwise admissible to the United States at the time of such admission except for those grounds of inadmissibility under paragraphs (5)(A) (lack of a labor certification) and (7)(A) (lack of a valid immigrant visa or entry document) of § 212(a) which were the direct result of that fraud or misrepresentation.

Please note that this waiver does not require demonstration of extreme hardship to the qualifying relative. The waiver is purely a matter of discretion before the Immigration Judge. There is no official form or application.

EXTREME HARDSHIP

Most waivers are dependent upon a showing that the bar imposes an extreme hardship on a qualifying family member. Congress provided this waiver but limited its application. By such limitation it is evident that it did not intend that a waiver be granted merely due to the fact that a qualifying relationship existed. The key term in the provision is “extreme” and thus only in cases of real actual or prospective injury to the United States national or lawful permanent resident will the bar be removed. Common results of the bar, such as separation, financial difficulties, etc., in themselves are insufficient to warrant approval of an application unless combined with much more extreme impacts.

Extreme hardship can be demonstrated in many aspects of your qualifying family member’s life such as:

HEALTH – Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term.

FINANCIAL CONSIDERATIONS – Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly and infirm parents).

EDUCATION – Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in specific fields.

PERSONAL CONSIDERATIONS – Close relatives in the United States and /or your country; separation from spouse/children; ages of involved parties; length of residence and community ties in the United States.

SPECIAL FACTORS – Cultural, language, religious, and ethnic obstacles; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures.

 

Recent Case Results

December 16, 2016 – Citizen of Guatemala receives I-601A Provisional Unlawful Presence Waiver

December 16, 2016 – Citizen of Guatemala receives I-601A Provisional Unlawful Presence Waiver

Facts: In December 2015, a citizen of Guatemala came to the firm seeking a pathway to getting a green card. The citizen of Guatemala was married to a United States citizen spouse, but the citizen of Guatemala had entered the United States illegally and therefore he could not get a green card here in the United States – he had to travel back to Guatemala and return with an immigrant visa.

The Firm’s Representation: A non-citizen who enters the United States illegally generally cannot get a green card here in the United States – illegal entry is a bar to adjusting status to that of a lawful permanent resident. In such cases, the only way to get a green card is to apply for an immigrant visa at an embassy in the non-citizen’s home country, then travel to that country, then attend the interview at the embassy, then receive a determination of inadmissibility based on illegal presence in the United States, and then apply for a waiver which may take two years to adjudicate. However, President Obama initiated a program called the Provisional Unlawful Presence Waiver which allows the pre-processing of an unlawful presence waiver here in the United States, before the non-citizen travels to his or her country of origin. The firm takes an individualized approach with every Provisional Unlawful Presence Waiver to make sure that the waiver application has the best opportunity to be approved. This individualized approach has served the firm well because so far the firm has never had a Provisional Unlawful Presence Waiver denied. In our client’s case, the firm dug deep into the client’s background and the background of his spouse to find the necessary evidence for extreme hardship, the key requirement for a Provisional Unlawful Presence Waiver.

Outcome: The firm’s individualized approach worked to perfection again and our client from Guatemala was granted a Provisional Unlawful presence Waiver on December 16, 2016. Our client can now start the final step in the green card process by applying for his visa with the United States Embassy in Guatemala City, Guatemala.

March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief

March 31, 2016, Citizen of Cambodia receives INA 212(c) relief, seventeen years after he was unjustly deemed ineligible for such relief

Facts: Last year, the firm reported that our client’s removal proceedings had been reopened, sixteen years after our client had been unjustly deemed ineligible for INA 212(c) relief and ordered removed.

The Firm’s Representation: After our client’s case was reopened, venue for the removal proceedings was moved to the Charlotte, North Carolina Immigration Court, near where our client resided. Our client demanded that the firm continue to represent him and the firm agreed that we were in the best position to represent our client moving forward. The firm made the final preparations for our client’s INA 212(c) application for relief and represented our client at his individual hearing on relief in the Charlotte, North Carolina Immigration Court.

Outcome: On March 31, 2016, our client was finally granted INA 212(c) relief, nearly seventeen years after our client had been unjustly deemed ineligible for such relief. Our client was once again a lawful permanent resident. Needless to say, our client was extremely happy with the outcome.

Comment: Our client was a citizen of Cambodia, a country that refused to issue our client a travel document to return to Cambodia after he had been ordered removed to Cambodia. Had Cambodia issued our client a travel document, our client would have been physically deported years ago. Our client was lucky, but sadly thousands of green card holders were deported by a United States immigration system that obstinately and unjustly denied their legal right to apply for INA 212(c) relief, a relief that would have provided these green card holders a chance to retain their legal status and remain in the United States.

February 23, 2015 – Citizen of Guatemala retains his green card with a 212(h) waiver

February 23, 2015 – Citizen of Guatemala retains his green card with a 212(h) waiver

Facts: In July 2012, a citizen of Guatemala entered the United States and was stopped at the border and placed in secondary inspection. Even though the citizen of Guatemala had a green card, he had several convictions for theft and he was inadmissible to enter the United States. He was placed in removal proceedings and came to the firm for help.

The Firm’s Representation: Our client walked into the firm’s office for a consultation at 5:00 pm. After reviewing our client’s criminal history, it was discovered that our client had a theft conviction and a one year suspended sentence, which in the immigration context is an aggravated felony. Further review showed that our client had walked into the the firm’s office on exactly the 90th day after he was sentenced for his theft conviction. In Maryland, criminal defendants have 90 days to file a motion to reconsider the sentence. In this case, we needed to reduce our client’s sentence by one day to 364 days or less, but the court had already closed for the day. The firm called a colleague in Montgomery County who stated that the court had an after hours drop box. The firm quickly drafted a motion to reconsider sentence and emailed the motion to the firm’s colleague who agreed to deposit our client’s motion in the after hours drop-box for the Montgomery County Circuit Court. What luck! Several months later, the motion was granted and our client’s sentence was reduced to 360 days. The sentence reduction paved the way for our client to seek an INA 212(h) waiver in the Immigration Court. Our client did the personal work to keep himself out of trouble and the firm did the rest.

Outcome: Our client was granted an INA 212(h) waiver and he was able to retain his green card. In a few years, our client can apply for naturalization.

April 23, 2012 – Citizen of Mexico receives 212(h) waiver despite crime of possession of a deadly weapon

April 23, 2012 – Citizen of Mexico receives 212(h) waiver despite crime of possession of a deadly weapon

Facts: A citizen of Mexico had been trying to get a green card for nearly 15 years without any success. Eventually, she was placed in removal proceedings. She came to the firm for help.

The Firm’s Representation: The firm took our client’s case and discovered that her status as a “child” was preserved under the Child Status Protection Act even though our client was now 33 years old. She could adjust, but she needed a waiver based on a 1999 conviction for possession of a deadly weapon which is a crime involving moral turpitude under the INA.

Outcome: On April 23, 2012, in the Immigration Court, the waiver was granted and our client received her green card.

November 28, 2011 – Citizen of France receives U.S. citizenship after receiving 212(h) and 212(i) waivers for material misrepresentation in the Immigration Court and a crime involving moral turpitude

November 28, 2011 – Citizen of France receives U.S. citizenship after receiving 212(h) and 212(i) waivers for material misrepresentation in the Immigration Court and a crime involving moral turpitude

Facts: In 1994, a citizen of France came to the United States. Several years later he was convicted of theft. At about the same time, he married a U.S. citizen and applied for a green card. He got his green card, but never disclosed his theft conviction. He twice applied for citizenship, but was denied each time. In 2010, while returning from trip abroad, he was detained by Customs and Border Patrol and placed in removal proceedings. He sought the firm’s assistance.

The firm’s representation: The firm reviewed our client’s case and saw that he was eligible for a 212(h) and 212(i) waiver based on hardship to his family.

Outcome: On July 22, 2011 the Immigration Judge granted both waivers. The firm is assisting our client with his naturalization process. Our client’s naturalization application was recently approved and he should be a citizen of the United States within 45 days. On November 28, 2011, our client became a proud citizen of the United States.