Criminal Inadmissibility Waivers and Post-Conviction Options
The right strategy may involve showing that a ground does not apply, establishing an exception, seeking a waiver, or challenging the underlying conviction.
INA § 212(h) waivers
Section 212(h) can waive certain CIMT and other specified criminal inadmissibility grounds under particular conditions. Depending on the provision, eligibility may involve the age of the conduct, a lengthy passage of time and rehabilitation, or extreme hardship to a qualifying U.S.-citizen or lawful-permanent-resident relative. Special standards apply in certain violence-related cases, and statutory restrictions apply to some permanent residents, including certain aggravated-felony histories. This is not a universal waiver for all criminal grounds.
Narrow drug-related waivers
The controlled-substance component of § 212(h) generally addresses a single offense of simple possession of 30 grams or less of marijuana. A trafficking “reason to believe” finding under § 212(a)(2)(C) is not simply waived through an ordinary § 212(h) application.
Nonimmigrant and humanitarian contexts
Some applicants may be considered for nonimmigrant waivers under INA § 212(d)(3); separate waiver frameworks apply to certain U and T applicants and other humanitarian categories. The relevant visa classification and unwaivable grounds determine the options.
Post-conviction remedies
A state motion under New York CPL § 440.10, federal collateral review, or another valid remedy may be relevant if the conviction is legally defective. A vacatur based only on rehabilitation or immigration hardship may not eliminate the conviction for immigration purposes. We assess both the criminal remedy and the federal immigration effect before pursuing relief.
Related topics
- Criminal Convictions and Immigration Consequences
- Crimes Involving Moral Turpitude (CIMTs)
- Aggravated Felonies in Immigration Law
- Drug Crimes and Immigration Consequences
- Domestic Violence, Child Abuse, and Immigration
- Firearms Offenses and Immigration
- Other Criminal Grounds of Inadmissibility
Legal references
- 8 U.S.C. § 1182 — criminal inadmissibility
- 8 U.S.C. § 1227 — criminal deportability
- 8 U.S.C. § 1101 — definitions and aggravated felonies
- U.S. Department of State — criminal ineligibilities
General legal information; not a prediction of eligibility or outcome. Criminal and immigration law change, and individual analysis is essential.