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Understanding Criminal-Related Waivers on USCIS Form I-601| USA Immigration Lawyer

If you are found inadmissible to the United States due to a criminal issue, that does not automatically mean your case is over. In many situations, U.S. immigration law allows you to request a waiver using Form I-601, even when the application is processed through a U.S. consulate abroad.

This blog explains how immigration officers evaluate criminal-related waivers. Understanding these rules is critical, because criminal inadmissibility is one of the most common — and most misunderstood — reasons visa applications are denied.

This article explains how criminal-related waivers work, when they are available, and what USCIS looks for when deciding whether to approve them.

What This Article Covers

Criminal-Related Grounds of Inadmissibility
How USCIS Determines Whether a Waiver Is Available
Waivers Under INA §212(h)
Inadmissibility Based on Totalitarian Party Membership
Waivers for Totalitarian Party Membership

Criminal-Related Inadmissibility — What It Means

Criminal grounds of inadmissibility arise under INA §212(a)(2) and are among the most frequent reasons applicants need an I-601 waiver. These issues can result from:

Convictions for certain offenses
Multiple arrests or criminal charges
Crimes involving moral turpitude (CIMTs)
Controlled substance violations

If a criminal ground applies, you may be found inadmissible, meaning you cannot be issued a visa or admitted to the United States unless a waiver is available and approved.

What USCIS Reviews First

When reviewing a criminal-related waiver case, an officer must first determine:

Whether the offense meets the statutory definition of inadmissibility
Whether there was a conviction, dismissal, or acquittal
Whether any statutory exceptions apply

An applicant cannot be found inadmissible based on an admission to a crime if:

The applicant was tried and acquitted, or
The criminal charges were dismissed by a court
(See 9 FAM 40.21(a) N5.2)

When Is a Waiver Available for Criminal Grounds?

Not every criminal ground can be waived. USCIS must determine:

Whether the specific ground of inadmissibility is waivable under the law
Whether the statutory requirements for the waiver are met

The primary waiver for most criminal grounds is found under INA §212(h). This waiver may be required if an applicant has been convicted of, or admits committing, a criminal offense that triggers inadmissibility.

Important Exceptions for Crimes Involving Moral Turpitude (CIMTs)

INA §212(a)(2)(A)(ii) provides several key exceptions where a CIMT does not result in inadmissibility:

Purely Political Offense Exception

Defined at 22 CFR §40.21(a)(6), this includes convictions based on fabricated charges or repressive measures against political, racial, or religious minorities.

Juvenile Exception — INA §212(a)(2)(A)(ii)(I)

A CIMT does not cause inadmissibility if:

Only one CIMT was committed
You were under 18 at the time
The crime and any confinement ended more than five years before the visa or adjustment application

Petty Offense Exception — INA §212(a)(2)(A)(ii)(II)

A CIMT does not apply if:

Only one CIMT was committed
The maximum possible sentence did not exceed one year
The actual sentence imposed did not exceed six months

Juvenile Delinquency and Immigration Law

An adjudication of juvenile delinquency is not a conviction, whether it occurred in the U.S. or abroad. If the offense occurred outside the U.S., officers may apply the Federal Juvenile Delinquency Act (FJDA) to determine whether the offense should be treated as juvenile conduct.

Crimes committed under age 15 are treated as juvenile delinquency
Certain non-violent, non-drug offenses committed at ages 15–17 may also qualify
If treated as juvenile delinquency, no waiver is required

Waivers Under INA §212(h)

INA §212(h) allows USCIS to forgive certain criminal grounds of inadmissibility when statutory requirements are met and discretion is warranted.

Typical Situations Where §212(h) May Apply

Category	Description
Criminal conviction	A conviction exists, but the law allows a waiver
Non-conviction outcomes	Arrests or dispositions without a qualifying conviction
Multiple convictions	Where sentencing thresholds do not exceed statutory limits

⚠️ Important: Some crimes, including certain aggravated felonies, are not waivable. Eligibility depends on the statute and the specific facts of your case.

How USCIS Decides Whether to Grant a §212(h) Waiver

USCIS weighs both positive and negative factors, including:

Seriousness of the offense
Time elapsed since the crime
Evidence of rehabilitation
Family ties in the United States
Hardship to qualifying relatives

Approval is discretionary. Even if you qualify under the statute, USCIS may deny the waiver if negative factors outweigh the positives.

Two Ways to Qualify for a Criminal Waiver Under INA §212(h)

Rehabilitation-Based Waiver (No Qualifying Relative Required)

You may qualify if all of the following apply:

You are inadmissible only under INA §212(a)(2)(D)(i) or (ii) (prostitution-related grounds), or
The criminal activity occurred more than 15 years before the visa application
Your admission would not be contrary to U.S. national welfare, safety, or security
You can show rehabilitation

Extreme Hardship Waiver (Qualifying Relative Required)

A waiver may also be granted if:

Denial of admission would result in extreme hardship to:
- A U.S. citizen or lawful permanent resident spouse, parent, son, or daughter, or
- A K-visa petitioner
A favorable exercise of discretion is warranted

There is no time requirement for this type of waiver — unlike the 15-year rehabilitation waiver.

Inadmissibility Based on Totalitarian Party Membership

Under INA §212(a)(3)(D)(i), an applicant may be inadmissible if they:

Were a member of a totalitarian political party (such as a communist or fascist party)
Joined voluntarily
Participated in activities supporting the party’s goals

Although historically associated with Cold War cases, this ground of inadmissibility still applies today, especially for applicants from certain countries.

Waivers for Totalitarian Party Membership

INA §212(a)(3)(D)(iv) allows a waiver if strict conditions are met.

A waiver may be granted if:

You are the spouse, parent, son, daughter, brother, or sister of a U.S. citizen, or
You are the spouse or child of a lawful permanent resident, or
You are the fiancé(e) of a K-visa petitioner

And you can show that:

You are not a threat to U.S. security
The waiver serves humanitarian purposes, family unity, or the public interest
A favorable exercise of discretion is warranted

This waiver recognizes that political party membership in some countries may be automatic, coerced, or required, and does not necessarily reflect personal beliefs.

How USCIS Uses the I-601 Overseas Manual

When adjudicating overseas waivers, officers must: