Waivers

In removal proceedings, the respondent may apply for a waiver of inadmissibility to overcome his or her removability.  However, unlike other forms of relief from removal, waivers of inadmissibility standing alone cannot be asserted as affirmative applications for relief from removal. 

INA §212(h) Waivers for Criminal Inadmissibility Grounds  

The INA §212(h) waiver provides three separate waivers of criminal grounds for immigrants.  Each of those waivers will waive the following criminal inadmissibility grounds: 

• Crimes of moral turpitude;
• Multiple criminal convictions; and
• A single offense of simple possession of 30 grams or less of marijuana. 

Please note that the 212(h) waiver does not waive substance abuse offenses, other than a single offense of simple possession of 30 grams or less of marijuana. Thus, if the respondent’s inadmissibility is based on possession of ecstasy or cocaine, the 212(h) waiver is not applicable.  

With 212(h) waivers, the criminal inadmissibility grounds listed above may be waived for: 

• Persons who are inadmissible only under the prostitution or commercialized vice grounds of inadmissibility, or because of activities that occurred more than 15 years ago, if the person’s admission would not be contrary to the welfare or security of the United States and if the person has been rehabilitated;
• Persons who are the spouse, parent, son, or daughters of a USC or LPR, if it is established to the government’s satisfaction that refusing admission to the foreign national would result in extreme hardship to the USC or LPR relative; OR 
• Persons who have qualified as VAWA self-petitioners. 

The following additional requirements apply to 212(h) waivers: 

• The government must have consented to the person’s applying or reapplying for a visa, admission to the United States, or adjustment of status.
• The person cannot have been convicted of or admitted committing murder, torture, or an attempt or conspiracy to commit those crimes.
• LPRs are ineligible for the INA 212(h) waivers if they have been convicted of an aggravated felony; or they have not resided lawfully and continuously in the United States for 7 years prior to the initiation of removal proceedings.  

INA §212(i) Waivers for Fraud or Misrepresentation 

Inadmissibility because of general fraud or misrepresentation may be waived under INA §212(i).  It is important to note that the 212(i) waiver will not waive the inadmissibility ground of having made a false claim to U.S. citizenship, although there is an exception to that ground of inadmissibility for persons whose parents are or were USCs, who resided permanently in the United States prior to age 16, and who reasonably believed themselves to be USCs. 

To qualify for this waiver, the applicant must establish that his or her USC or LPR spouse or parent would suffer extreme hardship if permanent residence is denied.  However, this waiver no longer is available based on a showing of extreme hardship to the applicant’s USC or LPR child. 

INA §212(a)(9)(B)(v) Waiver for Unlawful Presence 

The government may waive the INA §212(a)(9)(B unlawful presence inadmissibility ground if refusing permanent residence would result in extreme hardship to a USC or LPR spouse or parent.  Like the 212(i) waiver, this waiver is not also available based on extreme hardship to a USC or LPR child.