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212(h) Discretionary Waiver: Waiver for Prostitution, Crimes More than 15 Years Old, Crimes of Moral Turpitude, and Simple Possession of Marijuana

Criminal Offense from the past often hunt clients in the present. This often comes up in Adjustment of Status cases. A recent new client came to me with a Criminal conviction that originated more than 20 years ago. Now he is a highly successful executive, about to file his Adjustment of Status.

How do we analyze such crimes, what is the Impact on I-485 cases today?
Enter 212(h) Waiver. The 212(h) waiver can be used for various criminal grounds of inadmissibility and has different requirements depending on the ground of inadmissibility, the date of conviction, the status of the applicant, and the concurrent application for relief (if any) for which the applicant is applying.

Specifically, the 212(h) waiver applies to the grounds of inadmissibility found at INA 212(a)(2)(A)(i)(I), crimes involving moral turpitude (CIMT); 212(a)(2)(A)(i)(II), as it relates to a single offense of possession of 30 grams or less of marijuana; 212(a)(2)(B), multiple criminal convictions; 212(a)(2)(D), prostitution; and 212(a)(2)(E), certain noncitizens who have asserted immunity from prosecution for serious criminal activity. Crimes that can never be waived by INA §212(h) include murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

Prostitution and Crimes More than 15 Years Old

The lowest standard for a 212(h) waiver is available in two instances: to individuals who are inadmissible under 212(a)(2)(D)(i) or (ii), the prostitution grounds of inadmissibility; or for other individuals who are inadmissible under any of the other grounds of inadmissibility for which a 212(h) waiver is available if the activity for which the individual is inadmissible occurred over 15 years ago.

In these circumstances, an applicant need only demonstrate that his or her admission is not contrary to the national welfare and that he or she has been rehabilitated. Thus, unlike the majority of 212(h) applicants, this particular category of applicants need not show hardship to a qualifying relative.

For example, Danny is convicted in New York for engaging in prostitution and is found inadmissible by the immigration judge (IJ) under INA §212(a)(2)(D)(i). He is applying for adjustment of status based on an approved I-140 and has no qualifying relatives. He is nevertheless eligible for a 212(h) waiver if he can prove that her admission into the United States is not contrary to the national welfare and that he has been rehabilitated.

Similarly, if Mark is convicted of a theft offense that occurred more than 15 years ago, and the IJ finds him inadmissible under INA 212(a)(2)(A)(i)(I), he need not show that a qualifying relative would suffer extreme hardship in order to be eligible for the waiver despite the fact that the theft offense is a CIMT.

Rather, he need only show that his admission would not be contrary to the national welfare and that he has been rehabilitated in order to qualify for the waiver. Although no showing of extreme hardship is required, however, an applicant still must prove that the waiver should be granted in the exercise of discretion.

Drugs and the INA 212(h) Waiver

There is a very limited waiver available under INA 212(h) for noncitizens convicted of controlled substances violations. Individuals who are inadmissible under INA 212(a)(2)(A)(i)(II) for drug-related offenses will qualify for a 212(h) waiver only if they were convicted of simple possession of 30 grams or less of marijuana. The “30 grams or less of marijuana” standard is inflexible.

Thus, if the statutory section under which the applicant was convicted is unclear as to the substance and/or the amount of the drug that was possessed, the applicant must be able to prove that the substance was marijuana and that the amount was 30 grams or less.

The 212(h) waiver is a useful waiver for many different criminal grounds of inadmissibility. But is important to understand the facts of each case to determine if it will apply in a particular case. Feel free to email us with any questions.