Section 212(h) of the Immigration and Nationality Act provides that the Attorney General may, in his discretion, waive the application of crimes involving moral turpitude, multiple criminal convictions), prostitution and commercial vice, certain aliens who have asserted immunity from prosecution, and an offense of simple possession of 30 grams or less of marijuana.
This waiver can be used for the following crimes:
(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.
Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.
Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.-Any alien-
(i) who has committed in the United States at any time a serious criminal offense (as defined in section
(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,
(iii) who as a consequence of the offense and exercise of immunity has departed from the United States,
(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having
jurisdiction with respect to that offense, is inadmissible.
To Qualify the aline must demonstrates to the satisfaction of the Attorney General that
1) the activities for which he is inadmissible occurred more than fifteen years before the date of the alien’s application for a visa, admission, or adjustment of statues;
2) the admission would not be contrary to the national welfare, safety, or security of the U.S.; and
3) the alien has been rehabilitated.
The Attorney General may also waive the grounds of inadmissibility for
Prostitution and commercialized vice.-Any alien who-
(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution,
To qualify: The alien must establish to the satisfaction of the Attorney General that the alien’s admission would not be contrary to the national welfare, safety, or security of the U.S., and that the alien has been rehabilitated.
In all these cases the aline must also establish that his removal from the United States would result in extreme hardship to his United States citizen or lawful resident parent, spouse, son, or daughter. In evaluating extreme hardship to a qualifying relative, factors to be considered include, but are not limited to: whether the qualifying relative has family ties to this country; the extent of the qualifying relative’s family ties outside the United States; conditions in the country of removal; financial impact of departure from this country; and significant health conditions, particularly when tied to an unavailability of suitable medical care in the country to which the qualifying relative would relocate.
BATTERY OR CRUELTY BY THE U.S. CITIZEN
A waiver is available. To be eligible for this waiver, the alien must be a spouse, child, or parent of a U.S. citizen and the alien or a child of the alien must have been battered or have been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.
The spouse or child of a lawful permanent resident of the U.S. is also eligible for a waiver where the alien or the alien’s child has been battered or has been the subject of extreme cruelty perpetrated by the alien’s spouse or intended spouse.
NO WAIVER FOR MURDER OR TORTURE
The Attorney General, however, may not grant a waiver in the case of an alien who has been convicted of, or admits committing murder or criminal acts involving torture or an attempt or conspiracy to commit murder or a criminal act involving torture.
NO WAIVER FOR AGGRAVATED FELONY OR NOT RESIDED IN THE U.S. FOR A PERIOD OF AT LEAST 7 YEARS
The waiver is also unavailable to an alien who has previously been admitted to the U.S. as an alien lawfully admitted for permanent residence if, since the date of such admission, he has been convicted of an aggravated felony or he has not lawfully resided continuously in the U.S. for a period of not less than seven years immediately proceeding the date of initiation of proceedings to remove him from the U.S.
Further, even if the applicant demonstrates that he merits a grant of discretion under the waiver, he must also establish that he meets the terms, conditions, and procedures of the regulations promulgated by the Attorney General.
The Attorney General will not favorably exercise discretion in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which the alien clearly demonstrates that a denial of the waiver would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion .
Section 212(h) relief is available in deportation and removal proceedings in conjunction with an application for adjustment of status, where it may be used to waive inadmissibility that would otherwise preclude adjustment of status.
The 212(h) waiver is available nunc pro tunc, allowing the applicant to reapply for admission retroactively, which may effectively dispose of the charges against him.
Finally, the Attorney General, in his discretion, must consent to the alien’s applying or reapplying for a visa, for admission to the United States, or for adjustment of status.
Lawful permanent residents seeking admission to the United States may also apply for section 212(h) relief, standing alone, in order to overcome a ground of inadmissibility that would otherwise preclude his or her admission.
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