Criminal convictions are generally a bar to obtaining permanent residence. Some individuals may be able to get an exception under the 212(h) waiver, part of the Immigration and Naturalization Act (INA).
Burden on Applicant
An applicant seeking a waiver has the burden of proving they should be granted an exception. Only certain crimes are eligible for this waiver, such as those that involve moral turpitude. The U.S. Department of State Foreign Affairs Manual provides a definition and examples of what crimes would fall under this definition. The manual lists fraud, larceny, and the intent to harm persons or things as the most common elements of crimes involving moral turpitude.
Other crimes may be eligible for a waiver. They include multiple criminal convictions, prostitution, a single possession of 30 grams or less of marijuana, or involvement in serious criminal activity but granted immunity by the prosecution.
In general, an applicant must demonstrate their admission would not be contrary to United States national security or public safety. They must also fall under one of four categories:
- They are inadmissible for either engaging in prostitution or soliciting the services of a prostitute and would otherwise be admissible
- The criminal activity occurred at least 15 years before the date the individual filed their application
- The foreign national is a child, spouse, or parent of a U.S. citizen or lawful permanent resident, and denying their application would result in extreme hardship to the U.S. national or lawful permanent resident
- The foreign national is a battered or abused spouse or child of a U.S. citizen or lawful permanent resident
Applicants should demonstrate that their previous criminal activity does not reflect their current character and would not be detrimental to U.S. interests.
The Importance of Building a Strong Case
USCIS makes determinations on 212(h) waivers on a case-by-case basis. Failure to explain or provide evidence as to why a waiver should be granted could result in a denial. Building a strong case is crucial, so applicants with criminal histories should work with qualified immigration lawyers.
To schedule a consultation with experienced Palm Beach immigration attorney Jacqueline Delgado, call Delgado Law Group at (561) 342-1429 or schedule a consultation here.