Under Section 212(h) of the INA, “The Attorney General may, in his discretion, waive the application of certain crimes or a drug crime insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana…” provided certain other conditions are met.
Such necessary conditions required to be demonstrated to the satisfaction of the Attorney General (or ostensibly his or her designee) include:
- The activities for which he was convicted or to which he admitted occurred more than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status,
- the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and
- the alien has been rehabilitated; or
“in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence… the alien’s denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien”. In order to prove such “extreme hardship”, the petitioner may need to show that these family members cannot survive absent financial support which he or she can only provide in the United States or that other circumstances exist, with respect to one or more of these family members which demand his or her residence in the country.
A case decided earlier this year in the Ninth Circuit Court of Appeals broadened the scope and application of Section 212(h). Two other federal circuits are also considering how the statutory language should be interpreted. Depending on the nature of their rulings, there may be several states from which waiver applicants may be able to stay in the United States, despite having on their records convictions which otherwise would warrant their removal from the country. In order to stay abreast of the latest controlling interpretation of this waiver provision, such potential applicants should consult with immigration attorneys maintaining up-to-date understanding of the state of the law in this area.
The Shulman Law Group, LLC has successfully prepared and filed many petitions on behalf of its clients who are family members of U.S. citizens. Its comprehensive experience in the field enables the firm’s attorneys and professional staff to understand what information and materials needs to be produced in order to ensure petitions receive appropriate consideration. This is particularly relevant in the case of those qualifying under the “special situation” categories referenced above. The firm’s excellence is fortified by its rigorous determination to ensure that all procedural matters are properly addressed.