Category Archives: good moral character

What should you do to get an I-601 waiver for criminal grounds?

Section 212(a)(2) of the Immigration & Nationality Act (INA) permanently bars you from adjusting to permanent residence or being lawfully admitted to the U.S. (either as an immigrant or nonimmigrant) on criminal and related grounds. When you have a lifetime ban due to a Crime Involving Moral Turpitude (CIMT) or controlled substance violation, for example, you need an I-601 waiver, available under INA § 212(h).

What Must You  Submit When Requesting an I-601 [INA § 212(h)] Waiver?

A section 212(h) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing hardships and/or rehabilitation; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Evidence of rehabilitation| Evidence that your admission would not be against the national welfare, safety, or security of the United States

Evidence of your rehabilitation and evidence that your admission would not harm the national welfare, safety, or security of the U.S. are especially important when you are filing for the waiver on these grounds. Such evidence is also essential to showing the positive factors outweigh the negative factors in your case.

The agency considers several factors when determining whether there is rehabilitation. They include:

  • Passage of time since the last conviction
  • The court order regarding sentence imposed and whether the applicant is likely to commit another offense
  • The applicant’s participation in a rehabilitation program, such as alcohol or drug treatment program, if alcohol or drug use contributed to the crime
  • The applicant’s active involvement in community activities and volunteer work
  • A grant of expungement or pardon
  • A psychological evaluation confirming the crime resulted from a mental problem for which the applicant is being treated

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives would suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you.

The presence of aggravating factors (e.g. conviction for a serious offense, recent convictions) and lack of mitigating factors (e.g. participation in a rehabilitation program) can lead to a denial of your waiver request. Needing another waiver, such as a section 212(i) waiver (for immigration fraud/willful misrepresentation) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(h) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the crime-related bar applies, who qualifies for the I-601 [INA § 212(h)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Tiago Pinheiro

What should you do to get an I-601 waiver for immigration fraud or misrepresentation?

Section 212(a)(6)(C) of the Immigration & Nationality Act (INA) permanently bars you from immigrating to the U.S. or being lawfully admitted to the U.S. when you have been found to have (1) committed fraud or willful misrepresentation to gain immigration benefits, or (2) made a false claim to U.S. citizenship for any purpose or benefit under immigration, federal or state law.

If you are inadmissible due to fraud or misrepresentation, you need an I-601 waiver, available under INA § 212(i), to get a green card or immigrant visa. There is no waiver for false claims to U.S. citizenship, but you may have defenses and exceptions to establish the bar does not apply to you.

 

What Must You  Submit When Requesting an I-601 [INA § 212(i)] Waiver?

A section 212(i) waiver applicant must submit a completed and signed Form I-601Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing extreme hardships; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, or K visa petitioner will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

(NOTE: A U.S. citizen or permanent resident son or daughter is not a qualifying relative for the purpose of proving extreme hardship in an I-601 fraud waiver request.)

Similarly, if you are a VAWA self-petitioner applying for the waiver, you must show the denial of admission will result in “extreme hardship” to yourself (or qualifying relatives).

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives will suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you. If you are a VAWA self-petitioner, the lawyer will also help prove you personally would suffer extreme hardship if you are denied admission.

Immigration fraud/misrepresentation is particularly serious. The presence of aggravating factors (e.g. criminal record) and lack of positive factors (e.g. active involvement in community or volunteer organizations) could lead to a denial of your waiver request. Needing another waiver, such as a section 212(h) waiver (for criminal and related grounds) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(i) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the fraud/willful misrepresentation bar applies, who qualifies for the I-601 [INA § 212(i)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Kevin Dooley

I-212 Waiver + Diversity Immigrant Visa = A True Success Story

confetti

On October 20, 2015, Dyan Williams Law PLLC celebrated its first-year anniversary and I celebrated the end of my first year as a solo practitioner. It’s been a wonderful journey. Although the prior 10+ years I spent at other law firms were rewarding, my 1 year at Dyan Williams Law proved to be much more. I  enjoy every single day of operating my own law firm, doing phenomenal work, and serving an excellent group of clients.

Our first year came to a close with most of our immigration cases approved and none denied. Others are in the works or are pending with the immigration agencies. One true success story involved USCIS’ expedited approval of a Form I-212 waiver request for a very deserving client.

Our client – an Immigrant Visa applicant – was unable to obtain his 2015 Diversity Visa without an I-212 waiver granting him permission to re-enter the U.S. following an expedited removal order. During the month of May, the U.S. Consulate granted the diversity visas to his wife (principal DV applicant) and young child (derivative DV applicant), but instructed him to first obtain an I-212 waiver.  He was unaware that he needed the waiver until the U.S. Consulate informed him.

Two years ago, he presented his visitor’s visa at an international airport to gain entry into the U.S. Instead of admitting him, the U.S. Customs & Border Protection placed him in secondary inspection and questioned him about his prior visits. After he admitted to previously working in the U.S. without proper authorization, he was summarily removed from the U.S. and sent back immediately to his home country.  His visitor visa was revoked and he was barred from re-entering the U.S. for five years, up until 2018.

The cut-off date to receive the 2015 Diversity Visa was September 30, the end of the DV Lottery fiscal year. Because he had only four months to obtain the visa when he contacted me in May about his I-212 application, I had to prepare a strong waiver request that would be readily and expeditiously approved by USCIS. The normal processing time for I-212 applications is 6 to 12 months.

I first had to review the Notice of Expedited Removal Order to determine why exactly he needed the waiver. Fortunately, he was not charged with fraud or willful misrepresentation to gain entry into the U.S. Had this been the case, he would have needed a separate I-601 waiver, for which he was not eligible.

In particular, for I-601 purposes, he did not have a qualifying relative (U.S. citizen spouse or parent who would suffer extreme hardship if he were not admitted to the U.S.) Although his wife received her Diversity Visa, she first had to land in the U.S. and be admitted to the country to become a permanent resident. And he had to accompany her to the United States on his Diversity Visa at the same time to become a permanent resident.

I next had to learn about all the relevant details, including the unusual hardships he and his family would suffer if he were not admitted to the U.S., his work experience and professional qualifications, and the harsh conditions in his home country. I further counseled him on the documentary evidence he should provide to support his waiver request. I also researched and gathered additional reports and articles on the terrible conditions in his home country.

It took him about one month to collect and provide all the required information and documents needed for the I-212 waiver. On June 24, I filed the I-212 application with the USCIS Field Office in Boston, MA, which had jurisdiction to decide the case. That office, however, (mistakenly) transferred the application to the Nebraska Service Center (NSC), where the I-212 sat for about two months for “administrative processing.” This unnecessary transfer added to the processing time. On August 20, NSC sent the case back to the Boston Field Office for a decision.

To support the I-212 waiver application, I presented a thorough legal brief describing how the positive factors outweighed the negative factors, and why my client deserved the waiver as a matter of discretion, under the law. I also provided compelling reasons for expedited processing (i.e. adjudication of the I-212 waiver application within 3 months). I argued that an emergency situation, humanitarian reasons, and subsequently, USCIS error and/or compelling interest of USCIS, existed to satisfy the criteria for an expedited decision.

After I submitted multiple follow-up letters to USCIS (including the Boston Field Office and NSC) describing the urgency of the situation, the USCIS adjudications officer in Boston made a personal telephone call to me on September 23. He informed me that I had presented a compelling case and he would approve the I-212 (just 7 days before the September 30th deadline to receive the visa). He faxed the approval notice to the U.S. Consulate and emailed me a copy.

I then advised my client to immediately contact the U.S. Consulate for a diversity visa issuance prior to September 30. Thankfully, the U.S. Consulate granted the visa on September 25.

The timely I-212 approval and visa grant allowed him to accompany his wife and child to the United States. Their admission to the U.S. on diversity immigrant visas makes them lawful permanent residents. If USCIS had denied the I-212, the applicant would have been stuck in his war-torn country (at least for a few years, until he could obtain an immigrant visa based on a petition by his permanent resident wife).

This client and I communicated only by email. He decided to hire me after his friend in the U.S. completed a Skype consultation with me and became convinced that I was the best attorney for his case. Despite our never meeting in person, we formed a trust-based relationship and collaborative partnership that contributed to a successful and timely outcome.

So far, the expedited approval of the I-212 waiver application in this Diversity Visa case is one of my most memorable, true success stories, since I established Dyan Williams Law PLLC.  I look forward to doing more great work and helping more clients study, work and live lawfully in the United States, reunite with their American families, and become U.S. citizens.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Juan Antonio Capó Alonso

When do you need an I-212 Waiver (and how do you get it)?

iron gateIf you have been removed from the U.S., you are barred from reentering the country for a set number of years or perhaps permanently, depending on why you were removed. Illegal (or attempted illegal) reentries to the U.S., in certain situations, also make you permanently inadmissible.

To be admitted to the U.S. while the bar still applies, you must file for and obtain an I-212 waiver or Consent to Reapply (CTR). Although the two terms are used interchangeably, a CTR request does not always involve the filing on an official Form I-212 and application fee.

When Do I Need an I-212 Waiver or Consent to Reapply?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. An aggravated felony conviction, however, creates a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act further state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

When you are subject to the 5, 10 or 20 year-bar, you do not need the I-212 waiver if you wait outside the U.S. for the duration of the bar before you seek admission to the U.S. But if you wish to lawfully reenter the U.S. before the time bar expires, you must obtain an I-212 waiver.  And when a permanent bar applies to you, you will forever be required to obtain an I-212 waiver.

An approved Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, or Consent to Reapply is valid indefinitely, as long as it is not revoked by the agency that issued the approval.

When the I-212 grant or Consent to Reapply provides permanent relief, it may be used for future immigrant or nonimmigrant purposes, as long as you do not incur new inadmissibility under INA section 212(a)(9)(A) or (C).

Returning unlawfully to the U.S. without the Consent to Reapply may lead to serious consequences, including reinstatement of your removal order, prosecution in criminal court, and a permanent bar from admission to the U.S. (that requires you to wait outside the U.S. for 10 years before you may apply for the waiver).

Five-Year Bar

You have a five-year bar on reentry from the date of your removal if:

  • You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry. [INA section 212(a)(9)(A)(i)]
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien. [INA section 212(a)(9)(A)(i)]

Ten-Year Bar

You have a 10-year bar on reentry from the date of your removal if:

  • You were ordered removed, other than as an arriving alien, by an immigration judge in removal proceedings. [INA section 212(a)(9)(A)(ii)]
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to removal order.  [INA section 212(a)(9)(A)(ii)]
  • You departed the U.S. willingly, but before removal proceedings were concluded.  [INA section 212(a)(9)(A)(ii)]
  • You left the U.S. while a removal order was outstanding.  [INA section 212(a)(9)(A)(ii)]

Twenty-Year Bar

You have a 20-year bar on reentry from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not.  [INA section 212(a)(9)(A)(ii)]

Permanent Bar

You have a permanent bar on reentry from the date of your removal if:

  • You were convicted of an aggravated felony.  [INA section 212(a)(9)(A)(ii)]. NOTE: For purposes of this permanent bar, it does not matter whether you have been convicted of an aggravated felony in or outside the United States, whether the conviction itself resulted in the removal order, or whether the conviction occurred prior to or after the removal order.
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you accrued more than one year (in the aggregate) of unlawful presence in the U.S. and left. [INA section 212(a)(9)(C)(i)(I).]
  • You reentered or attempted to reenter the U.S. illegally (without inspection or lawful admission) after you were ordered removed from the U.S. [INA section 212(a)(9)(C)(i)(II)].

Key Things to Know About the Permanent Bar

Permanent Bar Under INA section 212(a)(9)(A)(ii)

The permanent bar, due to an aggravated felony conviction, applies even if you were removed for reasons other than the conviction or you were convicted of the aggravated felony after being removed from the U.S.

Permanent Bar Under INA section 212(a)(9)(C)(i)(I) and (II)

The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

The accrual of unlawful presence is cumulative. For example, if you were unlawfully present for 6 months in 3 different periods (i.e. 18 months total), and you then re-enter the U.S. illegally, you face the permanent bar.

Unlike with the 3/10 year unlawful presence bar under INA 212(a)(9)(B), there are no exceptions for minors and asylees when it comes to the permanent bar. So if you were under 18 when your parent took you to the U.S., you accrued unlawful presence of more than 1 year, you left, and then returned to the U.S. without inspection, you face the permanent bar.

NOTE TO IMMIGRANT VISA APPLICANTS: If you are subject to the permanent bar under INA 212(a)(9)(C)(i) and seek an immigrant visa, you must be outside the U.S. and wait ten years abroad before filing the Form I-212. Based on 2006-2007 Board of Immigration Appeals case law and 2009 USCIS policy, an I-212 application for waiver of this permanent bar cannot be approved unless you are outside the U.S. and at least 10 years have elapsed from your date of departure.

NOTE TO I-360 VAWA SELF-PETITIONERS: If you are a VAWA self-petitioner, you do not have to wait outside the U.S. for 10 years to apply for a separate waiver of the INA 212(a)(9)(C) inadmissibility ground. But you must establish a connection between (i) your battering or subjection to extreme cruelty at the hands of your U.S. citizen or permanent resident spouse and (ii) your removal, departure from the United States, or illegal re-entry into the U.S.

NOTE TO NONIMMIGRANT VISA APPLICANTS: If you are inadmissible under INA 212(a)(9)(C)(i)(I) [9C1] and seek a nonimmigrant visa, you may file for temporary relief at any time through the U.S Consulate.  This is referred to as a 212(d)(3) waiver instead of a Consent to Reapply for Admission. The U.S. Consulate may submit an ARIS Waiver Request Form through the ARIS system. If granted, this relief is temporary and may not be extended to any future visa applications.

If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than ten years have passed since the bar was incurred, you may file the Form I-212 with USCIS (DHS) to obtain a Consent to Reapply. If granted, this relief is permanent and allows the issuance of a full validity visa.

A nonimmigrant visa applicant who is barred under INA 212(a)(9)(C)(i)(II) [9C2] must wait 10 years outside the U.S. before he may file a Form I-212 with USCIS (DHS). ARIS is not used by the U.S. Consulate for this relief. If granted, this allows the issuance of a full validity visa.

What are the Limitations of the I-212 Waiver or Consent to Reapply?

The I-212 waiver or Consent to Reapply alone is generally not enough to request lawful admission to the United States. It only gives you permission to apply for admission with a nonimmigrant visa, immigrant visa or, in some cases, adjustment of status, when you are inadmissible under INA 212(a)(9).

Only visa-exempt citizens of Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands do not need a visa to enter the United States for temporary visits. [NOTE: Being visa-exempt is not the same as being a citizen of a Visa Waiver Program (VWP) country, where the applicant still has to receive authorization under ESTA. ESTA will not be granted to an inadmissible person.]

If your waiver is granted, your prior visa status is not restored. Instead, you merely have permission to apply for a new visa or admission to the United States. For example, if you previously had lawful permanent residence based on marriage to a U.S. citizen, but were removed from the U.S., you must seek a new immigrant visa after the I-212 waiver is granted. If you are now divorced, you will no longer qualify for the immigrant visa based on the same marriage. You may, however, use the I-212 waiver to apply for a visa on another basis.

The I-212 waiver is also not enough if you have other grounds of inadmissibility for which there is no waiver or for which there is a waiver, but you do not qualify.

For instance, fraud or willful misrepresentation of material fact to gain immigration benefits, under INA 212(a)(6)(C)(i), and certain crime-related grounds under INA 212(a)(2) make you permanently inadmissible. An I-601 [INA § 212(i)] immigrant waiver is available to overcome the fraud/willful misrepresentation bar when you have a qualifying relative who will suffer extreme hardship if you are not admitted to the U.S. An I-601 [INA § 212(h)] immigrant waiver is available to some foreign nationals for some criminal grounds. A 212(d)(3) nonimmigrant waiver is available for most inadmissibility grounds.

Where Do I File My Form I-212 Application or Request for Consent to Reapply?

Whether you are in the U.S. or abroad, the reasons you were deported, the type of visa you intend to use to enter the U.S., whether you also need an I-601 waiver, and other factors determine where you file your I-212 application or request for Consent to Reapply.

There are various potential filing locations, including the U.S. Consulate that will issue the visa if the waiver is granted; the U.S. Citizenship and Immigration Services (USCIS) Field Office having jurisdiction over the place of the original removal proceedings; the U.S. Customs and Border Protection (CBP); and the Executive Office for Immigration Review (EOIR). The direct filing addresses for the I-212 are currently posted on the USCIS website.

The current application procedures, which are subject to change, include the following: 

Immigrant visa applicants who also need a concurrent Form I-601 waiver: file Forms I-212 and I-601 concurrently with the USCIS Phoenix Lockbox, which will forward your applications to the Nebraska Service Center.

Immigrant visa applicants who do not require a Form I-601 waiver: file Form I-212 with the USCIS field office having jurisdiction over the place where your removal proceedings were held. The same field office retains jurisdiction to adjudicate the Form I-212 waiver application.

Nonimmigrant visa applicants (other than K, T, U, or V visa applicants): request a Consent to Reapply at the U.S Consulate with jurisdiction over your nonimmigrant visa application.  The consular officer must then forward a recommendation for consent to reapply for admission and visa issuance to the CBP/Admissibility Review Office (ARO) for a decision.

K or V nonimmigrant visa applicants: file Form I-212 with the USCIS Phoenix Lockbox, which will forward your application to the Nebraska Service Center.

Nonimmigrant visa applicants with INA 212(a)(9)(C)(i) bar. If section 212(a)(9)(C)(i)(I) [9C1] is the only inadmissibility ground, and more than 10 years have passed, the Form I-212 is filed with USCIS (DHS). If section 212(a)(9)(C)(i)(II) [9C2] applies, you must wait 10 years before you may file the Form I-212 with USCIS [DHS].

Nonimmigrant visa applicants with the 212(a)(9)(C)(i)(I) [9C1] bar – but NOT the 9C2 bar – may seek temporary relief [212(d)(3) waiver] through the U.S. Consulate at any time.

Nonimmigrants or visa-exempt citizens at a U.S. port of entry who are not required to obtain nonimmigrant visas: file Form I-212 in person at a CBP-designated port of entry or a CBP-designated preclearance office, which will then forward it to the CBP/ARO for adjudication. [UPDATE: Starting in mid-2019, eligible citizens of visa-exempt countries — Canada, Palau, Federated States of Micronesia, and the Republic of the Marshall Islands — file the Form I-192 application through the online system, e-SAFE. Electronic filers need to go to the following ports of entry to complete the biometrics portion (fingerprints and photograph) of the waiver process: Blaine, Washington; Buffalo, New York; and Toronto Pearson International Airport.]

Adjustment of status applicants who are physically present in the U.S. and are inadmissible only under INA section 212(a)(9)(A): file Form I-212 with the USCIS office having jurisdiction over the Form I-485 adjustment of status application, which will adjudicate both applications.

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Applying for an I-212 waiver or Consent to Reapply involves more than just submitting the form and/or documents listed in the instructions. True success in obtaining an I-212 waiver is more likely when you have experienced counsel.

When you need the I-212 waiver or Consent to Reapply to reenter the U.S., consult an immigration attorney at least once and, preferably, hire a reputable one to guide you through the process from start to finish.

For more information on what to submit with your application and why seeking counsel helps, read our related article, What should you to get your I-212 Waiver? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Consequences of Criminal Offenses: Myths & Facts

When a person is charged with a crime, he and his criminal defense attorney are often most concerned with minimizing the penalties. The defendant might give up his right to a trial and enter a guilty plea or no-contest plea to a less serious charge, in exchange for the dismissal of other charges or a reduced sentence. But the U.S. immigration consequences can be far more serious than the jail time, fine, probation or other more direct consequences of the conviction.

Criminal convictions can lead to a non-citizen being deported from the United States, denied entry (or re-entry) into the United States, and stripped of immigration benefits, including eligibility to become a permanent resident or a naturalized citizen. The immigration consequences continue long after the person has already served his sentence.

If you are a foreign national who wishes to visit, immigrate to, or stay in the United States, you need to know the myths surrounding criminal offenses and their immigration consequences. The most common include:

Myth #1:  The “dismissal” of my criminal case, after I have met certain conditions, means I have no “conviction” under U.S. immigration law. 

Fact:  A conviction could still exist under federal immigration law even when a dismissal of the case means there is no conviction under state law.

You may qualify for a pre-trial intervention, first offender, or diversion program, in which counseling rather than punishment is emphasized. Some states and programs do not require defendants to enter a guilty plea or no-contest plea to qualify for the program. Prior to entering a plea, the person agrees to complete probation, anger management, group therapy, substance abuse treatment or other type of program. If the person successfully completes the program, the charges are dropped or the case is dismissed.

But when you must admit guilt or you are found guilty before the pre-trial intervention, first offender, or diversion program is imposed, this amounts to a conviction under federal immigration law. In this situation, a dismissal of the case — after you complete the program — does not wipe the slate clean for immigration purposes.

Immigration law defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.

“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is actually served or suspended is irrelevant.

Unless a criminal case is outright dismissed, is stricken, or is not prosecuted — without any admission of guilt or penalty imposed — a criminal conviction exists under immigration law.

Myth #2:  An expungement (or sealing) of my criminal record means it is erased as if it never existed. 

Fact:  Generally, an expungement seals or deletes the criminal record in the local court and (perhaps) the state police’s databases.  Each state uses its own approach and procedures.  In most cases, a full expungement treats the offense as if it never occurred. For immigration purposes, however, an expungement does not erase the conviction.

Fingerprints taken when you were arrested remain in the FBI or federal databases. Immigration officials may still see or request expunged records for certain purposes.

When you file for a nonimmigrant visa, a visa waiver (under ESTA), permanent residence or U.S. citizenship, you are asked about arrests, charges and convictions. An expunged or sealed record does not make the arrest, charge or conviction go away for immigration purposes.

As part of a Form I-485 application for adjustment to permanent residence, Form I-90 application for replacement of green card, or Form N-400 application for naturalization, you must provide your fingerprints at a biometrics appointment.  A background check, including review of criminal records in the FBI database, will be conducted before you receive a decision on your application.

Your criminal record will normally turn up in the background check. If an immigration officer sees that you have a record, and you stated that you had no arrests, charges or convictions, he may deny your application based on fraud or willful misrepresentation of material fact to gain immigration benefits.

Immigration officials can sometimes obtain expunged records from the court. But you have the burden to produce court-certified records when you apply for certain immigration benefits, such as permanent residence, a new green card, or naturalization. Therefore, it’s best that you obtain the court-certified records before you seek an expungement. Otherwise, you might need to get the record unsealed to allow continued processing of your application.

Myth #3:  A relatively minor offense, such as a misdemeanor or a conviction resulting in a sentence under 1 year, will not cause any immigration problems.

Fact: A conviction does not necessarily disqualify a person from obtaining a visa, permanent residence, naturalization, or other immigration benefits. The  only situation in which a single conviction is an automatic and permanent bar to entering the U.S. is when the conviction is for an aggravated felony, and you have been previously removed due to the conviction.

In general, misdemeanor offenses carry less serious consequences than felony offenses. A sentence of less than one year can save the person from being deported without a viable defense. But the nature of the offense, type of conviction, and the maximum potential penalty are additional factors to consider.

Even non-violent, relatively minor misdemeanor offenses under state law can be classified as a felony or even an aggravated felony under federal immigration law. The Immigration and Nationality Act does not distinguish between felony and misdemeanor crimes. Rather, crimes are categorized by the type of conduct involved.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for asylum, cancellation of removal, certain waivers of inadmissibility, and voluntary departure. Section 101(a)(43) of the Immigration and Nationality Act provides a list of offenses that are deemed aggravated felonies. They include:

  • murder
  • rape
  • sexual abuse of a minor (including statutory rape)
  • controlled substance trafficking
  • illicit trafficking in firearms or destructive devices
  • money laundering of more than $10,000
  • fraud or tax evasion involving a loss that exceeds $10,000
  • a crime of violence with a sentence of at least one year
  • a theft offense or burglary offense with a sentence of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year

While a reduced sentence under 1 year might help you avoid an aggravated felony charge, this only applies to a narrow group of convictions (e.g. theft and violent crimes).  There are various types of convictions that present immigration problems, no matter the sentence.

An aggravated felony is not the only crime that carries serious immigration consequences. Controlled substance violations, firearms offenses,  domestic violence, stalking, violation of protective orders, child endangerment, and child abuse are especially problematic.

Crime Involving Moral Turpitude

A Crime Involving Moral Turpitude (CIMT) often causes major immigration problems as well. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.

Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

A noncitizen is inadmissible to the U.S. if he is convicted of – or admits to committing – one CIMT (other than a political offense), unless he qualifies for:

(1) the petty offense exception, where the person committed only one CIMT ever, the CIMT has a potential sentence of a year or less, and a sentence of six months or less was imposed ; OR

(2) the youthful offender exception, where the person committed a single CIMT while under age 18, and at least five years have passed since the conviction and release from jail.

A noncitizen is deportable if convicted of a CIMT (other than a political offense) committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed. The maximum sentence possible is the determining factor. For example, if the CIMT occurred within five years of the person becoming a lawful permanent resident, he is still removable from the U.S. if he could have been sentenced for 365 days or more. It doesn’t matter whether the actual sentence was less than 365 days or was suspended upon completion of probation.

A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. The only two exceptions are if the offenses are “purely political” or arose in a “single scheme of criminal misconduct” (i.e. the very same incident).

To be admitted to the U.S. as a permanent resident or to prevent removal from the U.S. as a result of a CIMT, the person must qualify for certain relief, such as a 212(h) waiver in conjunction with adjustment to lawful permanent resident status.

Controlled Substance Violations

Section 212(a)(2)(A) (i)(II) of the INA states a person is inadmissible if he violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21 (Controlled Substances Act). To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation. This includes simple possession or use of marijuana or any other drug listed in Title 21, section 802.

The 212(h) waiver is available only when the intended immigrant has one controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish).

Multiple Convictions

A noncitizen is inadmissible if convicted of two or more crimes (other than purely political offenses) – regardless of whether the conviction arose from a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the crimes involved moral turpitude –  for an aggregate confinement totaling five years or more.

Criminal Records in general

In addition, any criminal record can make it much harder for you receive certain immigration benefits. For example, a disorderly conduct conviction or multiple DUI offenses are not automatic or conditional bars to naturalization. But they can make it harder for you to establish good moral character and easier for USCIS to deny your naturalization application – especially if they occurred within the statutory period (generally 3 to 5 years before you file your Form N-400.)

Myth #4: My criminal record will not matter if I have been a permanent resident for many years. 

Unconditional permanent resident status does not expire even when your 10-year green card is no longer valid.  But it can be revoked due to certain criminal convictions. As a permanent resident, you may also be denied-re-entry to the U.S. or be placed in removal proceedings on criminal-related grounds.

Although lawful permanent residents have more rights and privileges than undocumented immigrants and foreign nationals in non-immigrant status, only U.S. citizens are fully protected from the immigration consequences of criminal convictions.

Myth #5: Foreign convictions do not count for U.S. immigration or travel purposes.

U.S. immigration authorities consider a foreign conviction to be a “conviction” in the immigration context if the conviction resulted from an offense deemed to be criminal by U.S. standards. Federal U.S. standards on sentencing are also used to determine whether the foreign conviction is a felony or a misdemeanor, regardless of the sentence imposed in the foreign jurisdiction.

The U.S. also does not recognize foreign pardons.  Only full and unconditional U.S. pardons for a U.S. conviction – granted by the highest executive authority – removes deportability and inadmissibility under INA 212(a)(2)(A)(i)(I) (crime involving moral turpitude).  Foreign pardons do not county for U.S. immigration or travel purposes.

The Form I-485 application specifically asks you to disclose whether you have been arrested, cited, charged, convicted or sentenced for crimes outside the U.S. In the naturalization context and in visa applications, you are also expected to list criminal offenses that occurred outside the U.S., regardless of whether they resulted in a conviction or guilty plea.

Learn about the immigration consequences of a criminal charge or conviction before you enter a plea, leave the U.S., or apply for immigration benefits

In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that the 6th Amendment right to counsel requires criminal defense attorneys to provide advice about the immigration consequences of a conviction to their noncitizen clients.  This decision, however, does not apply retroactively to pre-Padilla cases.

The immigration consequences depend on the elements of the crime, the nature of the offense, the potential sentence, the actual sentence imposed, and whether the person has other convictions.

Deportation, denial of entry to the U.S., and separation from families often have far more lasting effects than the sentence imposed.  Certain criminal convictions lead you into removal proceedings after you complete your jail sentence, or when you apply for a green card or for U.S. citizenship. You can also be denied re-entry to the U.S. as a permanent resident or valid visa holder on crime-related grounds.

You need to know how a conviction or sentence affects your immigration status before you enter a guilty plea, leave the U.S., or apply for immigration benefits including naturalization. Make sure to seek advice from an attorney who is experienced in the intersection between the two complex areas of immigration law and criminal law.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Photo by: Jeffrey