If you’re a foreign-born individual seeking a visa or green card to enter the United States, it’s essential to understand that certain criminal activities can render you ineligible for admission. However, U.S. immigration law offers a solution, the 212(h) waiver, even if immigration officials deem you inadmissible. This process allows you to overcome these barriers and potentially gain entry into the country. In this comprehensive guide, we will explore:
The 212(h) waiver can eliminate the following types of offenses:
In the same manner, this research attempted to identify the specific eligibility criteria and necessary conditions for qualifying for this waiver.
The following guideline outlines the complex steps an individual must take to obtain a 212(h) waiver.
The Reality of Criminal Grounds of Inadmissibility
Immobility law in the United States does not allow any criminal activity to make a person inadmissible. Petty criminality offenders, an example being a traffic ticket offense for speeding, do not meet the threshold of being inadmissible. Before you can conclusively establish whether your criminal history deems you (or your client) inadmissible to the United States for immigration purposes, it is critical to identify the type of criminal activities that amount to inadmissibility.
The most common criminal grounds of inadmissibility encompass:
1. The misdeeds that involve moral turpitude, an individual’s immoral conduct, or baseness of character (CIMTs)
Crimes that involve moral turpitude (CIMTs) are one of the most common reasons for inadmissibility. Most societies consider these offenses to be warped because they involve behaviors that are immoral and unethical.
2. Controlled Substance Violations
Persons with convictions for controlled substances carry inadmissibility, especially if one contradicts the drug-related offenses.
3. Multiple Criminal Convictions
Multiple convictions for offences carrying a combined total of a sentence of more than five years excluding murder or torture convictions would automatically render one an inadmissible person. Other criminal activities can make them inadmissible to the US, even if these crimes are not typically prioritized and do not require a conviction. These include:
- Controlled substance trafficking.
- You are buying a house with a woman if you are involved in prostitution or a man who has invested a lot of his money in gambling.
- Immunity from prosecution for cases with serious criminal conduct alleged or proven.
- Experiencing particularly grave violations of freedom of religion while a government employee in the home state.
- Significant trafficking in persons.
- Money laundering.
The 212(h) Waiver: Redemption: The Untapped Potential
The authorities consider one inadmissible on the grounds of a crime for this reason. However, there is a light at the end of the tunnel, often referred to as the 212(h) waiver, based on Section 212(h) of the Immigration and Nationality Act. While this waiver offers a route to legal redemption, it allows you to attain admissible status in the United States of America depending on certain conditions that the authorities deem appropriate.
Crimes Eligible for a 212(h) Waiver
You may be eligible for a 212(h) waiver if you are inadmissible due to the following:
- Any other crime of moral turpitude as defined under the United States immigration law apart from murder or torture.
- Any two or more criminal offenses leading to one or more than a cumulative of five years imprisonment with or without hard labor but not including murder or torture.
- Though the law is still fresh, the offense ranged from simple possession of 30 grams or less of marijuana.
- Solicitation for prostitution, or any similar activities involving the sale of human beings and their bodies.
- Challenging one’s sovereign immunity for a major crime, like diplomatic immunity, and then fleeing the United States to evade legal trial in a federal court for the committed offense.
However, a 212(h) waiver is not available if you are inadmissible due to the following:
- Drug trafficking.
- Murder or torture convictions.
- Significant trafficking in persons.
- Money laundering.
- The most egregious violation of Freedom of religion is being a foreign government official.
Meeting the 212(h) Waiver Requirements
For instance, to qualify for the 212(h) waiver you must meet certain legal provisions that must be met before the applicant can qualify for the waiver. This will vary based on facts of your case and other facts that surround you here, the type of crime you committed among other considerations. Here are the key scenarios that may enable you to qualify for a waiver:
1. Prostitution-Related Offenses
If your inadmissibility stems from a prostitution-related offense, you must demonstrate:
Rehabilitation: It is good that you are not involved in any such things anymore your life has changed for the better.
No Threat to Welfare, Safety, or Security: You should not be likely to become a burden to society, endanger citizens’ health or lives, and not pose a threat to public security. This means that some security clauses cannot be negotiated or altered to fit the client’s needs, as they are very sensitive.
2. Passage of Time
This means that if you have not paid the penalty due to financial strain or any other reasons within the 15-year timeframe, the authorities may grant you a waiver.
As for the offenses that directly relate to prostitution, you will need to provide evidence of the rehabilitation and to prove that your admission does not create any potential risk to the welfare, security, or safety of the United States.
3. Violence Against Women Act (VAWA) Self-Petitioner
If you, as a VAWA self-petitioner, do not need the assistance of your abusive U. S. spouse or parent to apply for a family-based green card, you may have a chance to qualify for a waiver.
4. Extreme Hardship to a Qualifying Relative
The immigration authorities can consider persons who wish to enter the USA for a 212(h) waiver if the persons have a qualifying relative who will experience extreme hardship in their country if the authorities deny the applicant entry to the United States. The status of relatives that may qualify for the program comprises persons possessing a green card or a valid U.S. passport who are relatives, often spouses, parents, sons, or daughters. There are several aspects that immigration officials use to decide whether extreme hardship exists when including medical, financial/employment, educational, personal, and physical.
Challenges with Waiving Violent
The current Obama administration policy of not granting inadmissibility for those involved in violent or dangerous crimes is extremely difficult to pull off, but not impossible. Such cases require a show of extraordinary circumstances most often when proving this may entail a detailed exercise. If you have a conviction for a violent or dangerous crime, you must show that:
- National Security or Foreign Policy Considerations Apply: Your case must present issues that affect the national security or foreign policies of your nation.
- Immigration officials will reject your application only if denying it would cause a qualifying relative to experience hardship far beyond what is normally expected, which is called “Exceptional and Extremely Unusual Hardship.”
- Given the complexity of these cases, seeking legal counsel is highly advisable if you have a conviction related to violent or dangerous crimes.
Applying for a 212(h) Waiver
To initiate the process of obtaining a 212(h) waiver, you must submit Form I-601 to U.S. Citizenship and Immigration Services (USCIS). It is imperative to follow the necessary steps and provide comprehensive documentation.
If extreme hardship to a qualifying relative is a key factor in your case, include detailed evidence that highlights the hardship your relative would endure. This can include affidavits, financial records, medical documents, expert opinions, evidence of employment ties, involvement in community activities, family ties, country condition reports, and any other supporting evidence.
What are the success rates for 212(h) waivers for Nigerians
The success rates for 212(h) waivers, particularly for Nigerians, are not explicitly detailed in the available search results. However, several factors can influence the likelihood of success in obtaining a 212(h) waiver:
Factors Influencing Success Rates
Demonstration of Extreme Hardship:
For applicants seeking a waiver based on extreme hardship to a U.S. citizen or lawful permanent resident relative, the ability to convincingly demonstrate that denial would result in significant hardship is crucial. Strong evidence and documentation supporting this claim can improve success chances.
Rehabilitation Evidence:
Applicants who can provide evidence of rehabilitation, such as letters from community leaders, employment records, and proof of good conduct since the conviction, may enhance their chances of approval.
Discretionary Nature of Waivers:
The 212(h) waiver is discretionary, meaning that even if an applicant meets the eligibility criteria, immigration authorities have the authority to deny the application based on other factors, including the severity of the crime and any negative aspects of the applicant’s background.
Legal Representation:
Having experienced legal representation can significantly impact the success rate. An attorney familiar with immigration law and waivers can help prepare a stronger case and navigate the complexities involved in the application process.
What are the most common reasons for the denial of 212(h) waivers for Nigerians
The 212(h) waiver allows certain individuals who are inadmissible to the U.S. due to criminal convictions to seek relief. However, there are several common reasons why these waivers may be denied, particularly for Nigerian applicants. Here are the key factors:
1. Aggravated Felony Convictions
- Statutory Ineligibility: Individuals who have been convicted of an aggravated felony after their admission as lawful permanent residents (LPRs) are generally ineligible for a 212(h) waiver. This includes serious crimes such as violent offenses, drug trafficking, or crimes involving moral turpitude that carry significant penalties.
2. Failure to Demonstrate Extreme Hardship
- Hardship Requirement: For those applying under the extreme hardship provision, failure to adequately demonstrate that denial of the waiver would result in extreme hardship to a qualifying relative (U.S. citizen or LPR spouse, parent, or child) can lead to denial. The evidence must convincingly show that the hardship is significant and not just typical challenges associated with separation.
3. Crimes Involving Moral Turpitude
- Nature of Offenses: Convictions for crimes involving moral turpitude can complicate waiver applications. If the crime is viewed as particularly egregious or indicative of bad character, it may weigh heavily against the applicant in the discretionary review process.
4. Multiple Criminal Convictions
- Aggregate Sentences: Applicants with two or more convictions resulting in an aggregate sentence of five years or more face a higher likelihood of denial. This is particularly true if the convictions are seen as part of a pattern of criminal behavior rather than isolated incidents.
5. Inadequate Evidence of Rehabilitation
- Rehabilitation Claims: If applicants cannot provide sufficient evidence of rehabilitation due to their criminal convictions, their chances of approval diminish significantly. Evidence can include letters from community members, proof of employment, and participation in rehabilitation programs.
6. Discretionary Factors
- Negative Factors vs. Positive Factors: The decision to grant a waiver is discretionary and involves balancing negative factors (such as the nature and recency of criminal offenses) against positive factors (like family ties and contributions to society). If negative factors outweigh positive ones, the waiver may be denied.
7. Continuous Presence Requirement
- Seven-Year Rule: For certain applicants, failure to demonstrate seven years of continuous presence in the U.S. can lead to ineligibility for a waiver under specific circumstances outlined by immigration law.
Seek Professional Legal Guidance
Navigating the complexities of criminal grounds of inadmissibility and the 212(h) waiver process can be challenging. Deciphering whether your situation warrants a waiver requires careful analysis of your unique circumstances. If you believe that you may need a waiver, it is advisable to consult with an experienced immigration attorney who can provide expert guidance tailored to your specific case.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the United States straightforward and successful. Whether you’re applying for a Family-Sponsored Visa, or Adjustment of Status (Form I-485), we handle every step from preparing your application to gathering the required documents.
Our immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process, coordinating with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to do the United States. Call us today at +234 812 5505 986 to learn how we can assist you.
