a. the criminal activities (necessitating the waiver) occurredmore than 15 years before the date of the application for a visa,admission or adjustment of status; andb. admission would not be contrary to national welfare, safety, orsecurity; andc. the person has been rehabilitated.C. An immigrant who:a. is the spouse, parent, or son or daughter of a U.S. citizen or LPR;andb. establishes that extreme hardship would befall the qualifyingrelative if admission were denied.D. VAWA self-petitioners under INA §§ 204(a)(1)(A)(iii) or (iv) or204(a)(1)(B)(ii) or (iii) (no additional statutory requirements).
the person cannot have been convicted of having committed, attempted orconspired to commit, or have admitted acts that constitute murder or criminal actsinvolving torture.
INA § 212(h).
the Attorney General, in his discretion, and pursuant to such terms, conditionsand procedures as he may by regulations prescribe, has consented to the alien’s applyingor reapplying for a visa, for admission to the United States, or adjustment of status.”
INA § 212(h)(2).
in the case of a person previously granted LPR status, additional restrictionsapply. In addition to the three requirements above, a § 212(h) waiver can only be grantedto a person previously admitted to the U.S. as an LPR where the LPR:a. has lawfully resided
in the United States for not less than 7 yearsbefore removal proceedings were initiated;
andb. has not been convicted of an aggravated felony since becomingan LPR.
In an unpublished decision, the BIA has held that the statute does not require 7years of continuous residence as an LPR but instead only requires 7 years of continuousresidence in any lawful status.
In re Afek,
No. A45-662-418, 2006 WL 3088766 (BIAAug. 4, 2006). The BIA went on to hold that a person resides “lawfully” for purposes of § 212(h) if he or she was not subject to being removed as a matter of law during theprescribed period.
Notably, unlike cancellation of removal under INA § 240A, the commission of a
criminal offense does not cut off the 7 years required for a § 212(h) waiver. Thus, anLPR who is not eligible for cancellation on this basis, or not eligible for § 212(c) relief (if offense is post-1996), still could be eligible to apply for a § 212(h) waiver.
Several courts have considered whether the aggravated felony bar and/or sevenyear residency requirement violates equal protection insofar as these requirements do notapply to non-LPRs applying for § 212(h).
category C, above,