The Criminal Waiver

How and When to Qualify for the Criminal Waiver

criminal waiver

“Just because you committed a crime does not mean you are always inadmissible to the U.S. You can get a Waiver prepared to be able to immigrate or stay in the U.S.”

— Brian D. Lerner, Immigration Lawyer

criminal waiver

 A 212(h) waiver provides a critical discretionary waiver of eligible crimes-based inadmissibility grounds, which include:

  • Crimes involving moral turpitude (“CIMT”)
  • Prostitution
  • Single offense of possession of 30 grams or less of marijuana
criminal waiver

212(h) waivers are discretionary, which means that the immigration officer reviewing your case has the ultimate say in deciding whether or not to approve your waiver. 212h waivers are granted as a matter of discretion. If the conviction to be waived was of a “dangerous or violent” offense, the applicant must meet an extraordinarily high standard in order to win a discretionary grant.


criminal waiver

Who can 212(h) be used by under the INA?

Section 212(h) of the INA provides a waiver for crimes inadmissibility grounds, which can be surprisingly useful for undocumented people, VAWA applicants, or permanent residents.

criminal waiver

When can you apply for this Waiver?

It can be applied for multiple times; it has the potential to waive an aggravated felony conviction (unless it is related to drugs); it can be used both affirmatively and as a defense to removal; and it does not always require proof of “extreme hardship.”


criminal waiver
Evidence to Show Extreme Hardship
  • Expert opinions; 
  • Medical or mental health documentation and evaluations by licensed professionals;
  • Official documents, such as birth certificates, marriage certificates, adoption papers, paternity orders, orders of child support, and other court or official documents;
  • Photographs;
  • Evidence of employment or business ties, such as payroll records or tax statements;
  • Bank records and other financial records; 
  • Membership records in community organizations, confirmation of volunteer activities, or records related to cultural affiliations; 
criminal waiver
Burden of Proof

The applicant bears the burden of proving that the qualifying relative would suffer extreme hardship. He or she must establish eligibility for a waiver by a preponderance of the evidence. [6] If the applicant submits relevant, probative, and credible evidence that leads the USCIS officer to believe that it is “more likely than not” that the assertion the applicant seeks to prove is true, then the applicant has satisfied the preponderance of the evidence standard of proof as to that assertion.


criminal waiver

Appealing a denial of a Waiver

It is difficult to appeal a decision denying a Waiver. While it is possible, it is a discretionary decision, and therefore, you will want the best Waiver to be put forward in the beginning. Do not try this yourself and the chances of winning will be much lower. There are all kinds of ways of trying to prove extreme hardship to the qualifying relative.

A Waiver is the Door you need opened to Immigrate.

It is the most important part of the petitiion. It is also the most difficult to get approved.

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