Waivers in Removal Proceedings
Some individuals may qualify for certain waivers before the Immigration Judge. These waivers either restore their lawful permanent resident status or enable them to adjust their status before the Immigration Judge. Such waivers can be found at Section 212(c), 212(h), 212(i), or 237(a)(1)(H) of the Immigration and Nationality Act.
Section 212(c) of the Immigration and Nationality Act was officially repealed by Congress on April 1, 1997. However, the 212(c) waiver is still available to lawful permanent residents who were convicted of certain crimes prior to April 1, 1997. For those who are eligible, the 212(c) waiver is an excellent option, because it is generally able to waive the effects of all but the most serious crimes, so long as the conviction came before April 1, 1997. This waiver can even waive the effects of “aggravated felonies” in many situations.
The 212(h) waiver is probably the most commonly sought after immigration waiver. It is typically used to waive the effects of certain types of criminal convictions. In general, it can be used to waive the effects of crimes such as theft, burglary, forgery, domestic assault, resisting arrest, possession of marijuana under 30 grams, and certain prostitution offenses. However, many different factors play into whether a person can seek a 212(h) waiver, including how long ago the offense necessitating the waiver occurred, the length and nature of the criminal sentence imposed, and whether the waiver applicant has certain qualifying U.S. citizen or permanent resident relatives. In certain situations, the waiver applicant must also demonstrate extreme hardship to a qualifying relative should the waiver be denied.
The question of whether an immigrant can benefit from a 212(h) waiver should be assessed by an experienced immigration attorney.
The 212(i) waiver is generally used to waive the effects of fraud or willful misrepresentation by an alien in seeking a visa, admission to the United States, or some other immigration benefit. For example, an alien who gained entry to the United States by misrepresenting his identity to an immigration officer would need a 212(i) waiver to adjust status before the Immigration Judge.
To qualify for the 212(i) waiver, the alien must generally show that denial of the waiver would result in extreme hardship to his or her citizen or permanent resident spouse or parent. The 212(i) extreme hardship rules are slightly different for VAWA self-petitioners.
The 237(a)(1)(H) waiver is generally available to lawful permanent resident aliens who obtained their green card through some kind of fraud or misrepresentation. For example, an alien who obtained her green card as the unmarried daughter of a lawful permanent resident, but who was actually married at the time of the visa application, might be able to seek a 237(a)(1)(H) waiver before the Immigration Judge.
To seek a 237(a)(1)(H) waiver, the applicant must usually be the spouse, parent, son or daughter of a U.S. citizen or lawful permanent resident. Additionally, the applicant generally cannot have been subject to any other grounds for denial of the green card (besides the fraud or misrepresentation in question) at the time the green card was issued.