IN our prior article, it was pointed out that an application for an immigrant visa and certain non-immigrant visas may be denied due to certain criminal grounds of inadmissibility. In some cases, the applicant can request for a waiver so a visa can be issued despite that ground. A waiver is a request by the alien applicant to the US government, through the USCIS, for “forgiveness” for the ground that the alien applicant has been found inadmissible so he can be granted the visa or green card despite of that criminal ground.
Under the Immigration and Naturalization Act (INA), waivers are available for the following criminal grounds:
• Certain crimes involving moral turpitude (CIMT). As a general, an alien who has committed or admits committing a CIMT is inadmissible. However, there is no need to file a waiver because you are not deemed to have committed a CMIT if:
• The crime was purely a political offense,
• The crime was committed when the alien was under 18 years of age, the alien has been released from prison or confinement, and it has been more than 5 years before the date of application for a visa was filed.
• The maximum penalty possible for the CIMT did not exceed imprisonment for one year and, if the alien was convicted of such crime, the sentence of imprisonment is not excess of 6 months
According to the Board of Immigration Appeals, a CMT “refers generally to conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general”. Examples of CIMT are murder, rape, incest, spousal abuse, and fraud, among others.
• A controlled substance violation of the laws of a foreign country or US state related to a single offense of simple possession of 30 grams or less of marijuana,
• Two or more convictions (not purely political ones), for which the sentences to confinement were a total of 5 years or more,
• Prostitution,
• Unlawful commercialized vice whether or not related to prostitution, and
• Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.
The applicant must show one of the following: (1) he is an approved VWA self-petitioner, (2) the US citizen or permanent resident relative (spouse, son, daughter, or parents) would suffer extreme hardship if the applicant is denied, (3) at least 15 years have passed since the event, or crime happened and the alien have been rehabilitated, or (4) if it’s a crime involving prostitution, the alien has been rehabilitated and the admission to the US is not contrary to national welfare, safety, and security.
If you are contemplating of filing any waiver application or any immigration petition for that matter, it is advisable to seek the counsel of an immigration lawyer to guide you on the intricacies of filing for such a petition.
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Atty. Gwendolyn Malaya-Santos is a member of the State Bar of California and the Integrated Bar of the Philippines. To schedule for a free initial in-person consultation, please call Tel. Nos. (213) 284-5984 or (626) 329-8215. Atty. Santos’ office is located at 3450 Wilshire Blvd., Suite 1200-105, Los Angeles, CA 90010.
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Information contained in this article does not, nor is it intended to, constitutes legal advice for any specific situation and does not create a lawyer-client relationship. It likewise does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
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