Section 212(a)(2) of the Immigration and Nationality (INA) act lists various grounds for inadmissibility on criminal and related grounds. In limited circumstances, an alien subject to section 212(a)(2) inadmissibly may be eligible for a section 212(h) waiver. In this article, we will summarize section 212(a)(2) inadmissibility and the rules for eligibility for a section 212(h) waiver.
List of Grounds of Inadmissibility
Crimes of Moral Turpitude
212(a)(2)(A)(i)(I) - An alien who is convicted of, who admits to having committed, or who admits to committing acts that contain essential elements of a crime of moral turpitude (CIMT) is inadmissible. There are limited exceptions. If the offense committed was an overseas “purely political offense,” inadmissibility will not attach. There are two exemptions listed in 212(a)(2)(A)(ii)(I)-(II). First, if the CIMT was committed when the alien was under 18 years of age and if the alien was released from confinement (if applicable) more than 5 years before the application for immigration benefits, the alien will not be inadmissible under section 212(a)(2)(A)(i)(I). Furthermore, there is a “petty offense” exemption if the maximum possible penalty for the crime does not exceed 1 year’s imprisonment and if the alien was not sentenced to a term of imprisonment in excess of 6 months.
Controlled Substance Violations
212(a)(2)(A)(i)(II) - An alien who violates, conspires, or attempts to violate any law of the United States or a foreign country relating to a controlled substance (as defined in 21 USC 802) is inadmissible.
Multiple Criminal Convictions
212(a)(2)(B) - An alien who is convicted of 2 or more offenses for which the aggregate sentences to confinement were 5 years or more is inadmissible. However, there is a “purely political offense” exception for purely political offenses committed abroad.
Controlled Substance Traffickers
212(a)(2)(C)(i)-(ii) - An alien who is or has been an illicit trafficker in any controlled substance or chemical (as defined in 21 USC 802) is inadmissible. Inadmissibility attaches of the alien assists others in such trafficking. The spouse, son, or daughter of such an alien who benefits from the trafficking of an alien described in clause (i) and knew or should have reasonably should have known the benefit was a product of such illicit activity is inadmissible for 5 years from the date he or she receives the benefit.
Prostitution and Commercialized Vice
212(a)(2)(d)(i)-(iii) - An alien who is seeking to enter the United States in order to engage in prostitution, or who has engaged in prostitution within 10 years of the date of seeking an immigration benefit is inadmissible. So too is an alien who direction or indirection procures or attempts to procure, within 10 years of the date of an application for immigration benefits, prostitutes or persons for the purpose of prostitution (or receives proceeds from prostitution). An alien coming to the United States to engage in unlawful commercialized vice is inadmissible. Please note that while there is a waiver available for prostitution-related offenses, there is no waiver for unlawful commercialized vice other than prostitution.
Certain Aliens Involved in Criminal Activity Who Have Asserted Immunity from Prosecution
212(a)(2)(E)(i)-(iv) - An alien who is convicted of a serious criminal defense as defined in section 101(h) of the INA who asserts immunity from prosecution, departs from the United States, and does not subsequently submit to the full jurisdiction of the court in the United States having jurisdiction with respect to the offense, is inadmissible. This inadmissibility ground generally attaches to those who assert diplomatic immunity.
Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom
212(a)(2)(G) - An alien serving as a government official who was responsible for particularly severe violations of religious freedom (defined in 22 USC 6402) is inadmissible.
Significant Traffickers in Persons
212(a)(2)(H)(i)-(iii) - An alien who commits or conspires to commit (or assists in either) human trafficking offenses in or outside of the United States (as defined in 22 USC 7102) is inadmissible. The spouse, son, or daughter of an alien inadmissible for human trafficking offense and who benefitted from such trafficking, and knew or should have known that the benefit was a product of such illicit activity, is inadmissible for 5 years from the date of having obtained the benefit. However, if the son or daughter of the inadmissible trafficker was a child at the time he or she obtained a benefit, the son or daughter shall not be inadmissible.
212(a)(2)(I)(i)-(ii) - An alien who has engaged, is engaging, or seeks to enter the United States to engage in an offense related to laundering of monetary instruments (as described in 18 USC 1956 or 1957) is inadmissible. An alien who is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in such laundering offenses is inadmissible.
Waiver of Inadmissibility
Section 212(h) authorizes waivers of inadmissibility for the following inadmissibility grounds described in section 212(a)(2):
- Single possession for personal use of 30 grams or less of marijuana;
- Multiple criminal convictions;
- Prostitution-related offenses; and
- Departure on diplomatic immunity after having engaged in criminal activity.
A waiver may be granted for prostitution-related offenses, the alien may demonstrate eligibility for the waiver by demonstrating that he or she is rehabilitated and his or her admission would not be against the interests of the United States.
In general, if the offense in question occurred more than 15 years before the alien’s application for a visa, admission, or adjustment of status, the admission of the alien would not be contrary to the interests of the United States, and the alien has been rehabilitated.
Otherwise, an alien applying for a section 212(h) waiver who is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident (LPR) may establish eligibility for the waiver by showing that the denial of his or her admission would result in extreme hardship to the U.S. citizen or LPR relative.
Finally, a VAWA self-petitioner may apply for a section 212(h) waiver.
The section 212(h) waiver is explicitly unavailable to an alien who has been convicted or has admitted to committing acts that constitute murder or a criminal act involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.
A person who was admitted to the United States as an LPR will be ineligible for a section 212(h) waiver if he or she is convicted of an aggravated felony or if he or she has not lawfully resided continuously in the United States for at least 7 years immediately preceding the initiation of removal proceedings.
It is important to be aware that being found to be inadmissible for criminal and related grounds may prove fatal to an alien’s future immigration prospects. Many of the inadmissibility grounds attach for life, and section 212(h) only authorizes waivers for a select few. If an alien is charged with a crime, he or she should consult with an experienced immigration attorney to learn about the potential adverse immigration consequences that he or she may be facing. If an alien is seeking a 212(h) waiver, he or she should consult with an experienced immigration attorney for assistance in proceeding with the application.