Under INA §212(a)(2)(A)(i)(I), a foreign national who has committed a crime involving moral turpitude (CIMT) is inadmissible. In order to overcome this inadmissibility, the foreign national must obtain either a non-immigrant waiver under INA §212(d)(3) or an immigrant waiver under INA §212(h).
However, if the foreign national’s sole conviction for a CIMT falls under the enumerated ‘Petty Offense Exception’ found under INA §212(a)(2)(A)(ii)(II), the foreign national will not be inadmissible and thus, will not require a waiver to re-enter the United States.
The Petty Offense Exception applies when: 1. the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year; and 2. if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
If the Petty Offense Exception applies, the foreign national needs to establish their eligibility for such exception to the satisfaction of the Consular Officer and/or U.S. Customs & Border Protection Officer. In order to meet this burden, the foreign national should have certified copies of the disposition, as well as copies of the relevant statute and punishment range, available for the Officer’s review. As a reminder, the relevant statute and punishment range should be the version that was applicable when the foreign national was convicted.
If you would like to determine whether your conviction may fall under the Petty Offense Exception, please contact our office to schedule a consultation - we can determine whether your conviction is a 'conviction' for immigration purposes, whether the conviction truly meets the definition of a CIMT, and whether the Petty Offense Exception applies.