In my practice I routinely consult with prospective clients who are ready to commence with the process of applying for permanent residence. However, during our consultation interview I discover that the applicant has a conviction for a criminal offense or some previous immigration violation. According to Immigration some criminal convictions/previous immigration violations may be waived if the applicant is able to prove all the necessary elements of the waiver petition. If the client is not eligible for a waiver petition the client will not be able to successfully obtain permanent residence and may be subject to detention and/or deportation. As such, if a client has any criminal convictions or previous immigration violation it is necessary to first determine if the client is eligible to submit a waiver application despite the client’s history. This month’s article will briefly discuss Immigration’s eligibility requirements for a waiver application.
When a non-citizen applies to the U.S. Government for an immigration benefit the applicant must demonstrate that he/she is eligible for the specific benefit. In addition to the eligibility requirement a specific benefit, the applicant must also demonstrate that he/she is admissible to the United States. The term “admissibility” states that the applicant must show that by law the U.S. government is not required to deny his or her access into the United States. The U.S. government has several grounds of inadmissibility. The six basic criminal grounds for inadmissibility are as follows: crimes involving moral turpitude, conviction of a controlled substance, prostitution, conviction of more than one offense, drug trafficking, and commission of a serious crime in the United States for which the non-citizen asserted immunity from prosecution. If Immigration determines that an individual is inadmissible, then Immigration can and will deny the individual the privilege of entering the United States. However, the good news is that not all criminal convictions or previous immigration violation will result in a finding of inadmissibility and consequently a denial. The U.S. government has created certain waiver grounds under which an applicant with a criminal violation or previous immigration violations may still apply for an immigration benefit and be approved.
- Waivers are generally available for minor offenses. This waiver is known as the petty-offense exception waiver. This waiver is applicable only in circumstances where the applicant has been convicted of only one crime, and the maximum possible punishment for the crime was not more than one year in prison, and if sentenced the applicant was sentenced to six months or less. The offense must have been a crime involving moral turpitude.
- The second waiver is a general discretionary waiver based on the applicant’s status as opposed to the specific conviction. The offenses covered are crimes involving moral turpitude, multiple criminal convictions, prostitution, assertion of immunity from prosecution, and simple possession of 30 grams or less of marijuana. There are two ways to qualify for this waiver. The first waiver process involves convictions either only for prostitution or that are more than 15 years old. Under the second waiver process, if the applicant is the spouse, child or parent of a U.S. citizen or permanent resident, he/she may obtain a waiver if he/she can show that the denial of the waiver would result in extreme hardship to the applicant’s U.S. citizen/permanent resident family.
- There are also a number of waivers that are available for juvenile offenses, purely political offenses and refugee/asylum applicants.
There are two important key issues to remember about waiver petitions. First, waiver petitions are unique to each individual applicant and therefore no two waiver petitions are exactly alike. Waiver petitions must be crafted around the specific facts of the applicant’s case. Second, waiver petitions are granted solely at the discretion of Immigration. As such, the waiver petition must be persuasively presented to convince Immigration that the applicant deserves a favorable decision. A successful waiver petition is the key to remaining in the United States in lawful status rather than being deported. If you are in need of a waiver petition, please contact our firm.
Disclaimer: This article is a broad overview of a frequently asked question associated with acquiring permanent residence. This article is provided as a public service and is not intended to establish an attorney client relationship. Any reliance on the information contained herein is taken at your own risk. The information provided in this article should never replace informed counsel when specific immigration-related guidance is needed.
About the Writer:
Safiya Byars is a native of Jamaica and an attorney in Decatur, Georgia. Her firm is located at 160 Clairemont Avenue, Ste. 200, Decatur, Georgia 30030. Her firm handles all Immigration Matters, Deportation, Domestic Relations, Criminal Defense, Business Formation and Litigation, Landlord/Tenant and Estate Planning. To discuss your case, please contact Attorney Byars at 404-992-6506 or 678-954-5809 or via email. or visit her firm’s website.