A 2 12 h waiver is a waiver that’s generally used in conjunction with adjustment of status. You can use it alone if you’re somebody who’s a green card holder and traveling into the United States and placed into removal proceedings either way the standard is the same. It’s generally used for people who have criminal convictions and are inadmissible to the United States. What I mean by inadmissible is they are physically here in the United States but they haven’t been admitted in any status and they’re seeking admission. So, if I am a visitor and I want to apply for a green card I’m seeking admission knocking on the door applying for a green card. If there’s any reason that makes me inadmissible to the United States such as a criminal conviction I need to ask for a waiver or a pardon from immigration to say to allow them to let me in.
A 2 12 H waiver is done on a form I 601 and you have to demonstrate that would be an extreme hardship to either a parent child or spouse who’s either a US citizen or lawful permanent resident. If you can demonstrate that it’s an extreme hardship to anyone one or all of those people then the judge or the Immigration Service has to look at discretionary factors to see whether or not the person should be allowed to stay in the United States. Keep in mind to 212 H can be done with a green card application so if you’re never been in removal proceedings and you have a criminal conviction and are eligible for a green card but for this crime you can apply for the green card with a 2 12 H waiver you do need to be mindful that if the 2 12 h waiver is denied by immigration that you could be placed into removal proceeding but that’s a conversation you need to have with an experienced immigration lawyer to let you know the dangers of being detained and the possibility of winning if you were placed into removal proceedings.
In your to 212 H waiver you’re going to want to show that (a.) It’s a hardship to your family members
(b.) that you deserve the waiver in discretion. And things that they will look at as your length of residents in the United States, your family ties, the hardship to you if you’re not allowed to stay, the hardship to your family if you’re not allowed to stay, your employment history, they’re going to look at the country that you’re returning to, so if it’s a third world country that’s completely different than the United States and you haven’t been there since you’re five years old, it’s going to make the case much stronger.
And then they’re going to also look at your rehabilitation. Are you a person who’s going to go back out and commit another crime? The last thing immigration wants or an immigration judges you can imagine is to be placed on the cover of the New York Post for giving you a green card and then the person goes out and commits another crime. So, you’re going to have to demonstrate all of this if applying for immigration through a green card on paper if you’re applying to an immigration judge both on paper and through testimony, which believe it or not sometimes can be a lot easier than just on paper.
But a 212 H waiver will waive your ground of inadmissibility in general for criminal activity if it can. Keep in mind you can never wave drugs under a 212 H waiver. So, if you do not have a green card and you’ve been convicted of a drug offense other than 30 grams of marijuana you will never be eligible for a green card based on family, ever or employment. So, just be careful of that when you’re discussing your options with a criminal lawyer, it’s important to discuss it with an immigration lawyer.