The United States disfavors green card applicants who have criminal records.
Therefore, whether you are applying for your green card through family or marriage sponsorship, your criminal record may render you inadmissible for permanent resident status, making a green card difficult to obtain.
However difficult, it is not impossible.
There are waiver provisions in U.S. immigration law that might allow you to obtain a green card, even with a criminal record.
In this article, SelfLawyer discusses criminal convictions, waivers under immigration law, and how to obtain a green card with a conviction on your record.
Do I Have to Tell of My Criminal Record in My Green Card Application?
Your immigration application contains an entire section devoted to your criminal record.
It asks you to describe your every interaction with the criminal justice system – not only in the U.S. but in your home country and anywhere else.
United States immigration law requires you to disclose ALL criminal history, even if your record has been sealed, expunged, or otherwise cleared.
If you have been told by a judge, lawyer, or law enforcement officer that you do not have to disclose this information in any other proceeding, you are required to report this criminal history to U.S. immigration officials.
Many people lie and simply state they have no criminal record.
These same people are quickly discovered when the required biometric screening is performed.
During this biometric screening, your photograph and fingerprints are subjected to a criminal background check.
Lying on your immigration application leaves you ineligible for virtually any U.S. immigration benefit in the future.
Even if this lie is discovered years later, your status will be revoked and you will be subject to deportation. This rule also applies after you’ve become a naturalized U.S. citizen.
When asked if you have to tell the United States Citizenship and Immigration Services (USCIS) of your criminal history, the answer is always, “Yes.”
What Constitutes a “Conviction” under Immigration Law?
Unfortunately, a “conviction” under U.S. immigration law is defined more broadly than a “conviction” in the criminal justice system.
If you plead guilty or were found guilty by a judge or jury, you are “convicted” of that offense.
For immigration purposes, you also have a “conviction” if you plead guilty (or no contest) in exchange for a sentencing diversion that leaves you with no criminal record.
For example, say you plead guilty in drug court in exchange for entering a treatment program with the promise of no criminal record.
You complete the treatment program and the court expunges (clears/removes) this conviction from your record.
Under immigration law, you still have a criminal conviction because you plead guilty to a criminal offense – regardless of what is on your record.
What Types of Criminal Records Will Prevent Me From Obtaining a Green Card?
Not every type of criminal offense makes you inadmissible.
Under U.S. immigration law, there are only three types of inadmissible offenses:
- Aggravated felonies
- Crimes involving “moral turpitude”
- Crimes involving illegal drugs
Absent from this list are minor traffic offenses.
If you were cited for some type of parking violation, you probably don’t need to list it on your immigration application.
However, if you were ticketed for any type of moving violation (speeding for example), it is probably best to list this offense even if it is unlikely to deny your application.
The definition of “aggravated felony” used in U.S. immigration law is not the same “aggravated felony” used in a state or federal criminal code.
An “aggravated felony” under immigration law are those crimes specifically listed by the Congress:
- sexual abuse of a minor (which can include statutory rape)
- drug trafficking
- trafficking in firearms or destructive devices
- various other offenses concerning firearms or explosive materials
- money laundering of more than $10,000
- fraud or tax evasion involving more than $10,000
- theft or violent crime with a sentence order of at least one year
- perjury with a sentence of at least one year
- child pornography
- trafficking persons or running a prostitution business
- spying, treason, or sabotage
- commercial bribery, counterfeiting, forgery, or trafficking in vehicles
- failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
- alien smuggling, and
- obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year.
This is not a complete list.
For other crimes that Congress has labeled as “aggravated felonies,” please refer to the USCIS website.
Immigration law defines “moral turpitude” as “evil intent.”
That is, you defraud or injure someone with the intent to cause that person harm.
Whether or not you acted with moral turpitude is subjective.
That is nobody really knows what your intent was but you.
In this regard, moral turpitude is often determined based upon whether a court or some other authority has found that the act in question involved moral turpitude in a prior case.
The following is a partial list of acts the federal courts have found to involve moral turpitude:
- voluntary manslaughter
- involuntary manslaughter, in some cases
- spousal abuse
- child abuse
- aggravated assault
- animal fighting
- fraud, and
- conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.
Again, this list is not inclusive of all offenses.
For a complete list of “moral turpitude” crimes, visit the USCIS website.
Immigration law is extremely intolerant of drug offenses.
As such, any drug offense can prevent you from obtaining a green card.
The only exception is one conviction for simple possession of 30-grams of less of marijuana for your own personal use.
What If My Conviction is Not in the United States?
If your criminal record stems from outside the United States, immigration law requires that you compare your offense with similar offenses from the U.S. criminal code.
There are two possibilities:
- If the laws of the country of conviction are equivalent to U.S. immigration law, then U.S. immigration laws of “inadmissibility” and “waivers” apply to you.
- If the laws of the country of conviction are not equivalent to U.S. immigration law, then U.S. immigration law of “inadmissibility” should not apply to your case, but there is no guarantee that USCIS will agree.
Can I Get a Waiver to Excuse My Criminal Record?
If you are found inadmissible due to your criminal history, U.S. immigration law allows you to apply for a “waiver of inadmissibility.”
To qualify for this waiver, you must establish that you are not a threat and that your ineligibility would result in “extreme hardship” to a U.S. citizen or a green card holding spouse.
Unfortunately, there are some crimes for which waivers are not available.
These include offenses involving murder and torture, conspiracy to commit murder or torture, and all drug offenses except for simple possession of less than 30-grams of marijuana for personal use.
Form I-601 (Waiver of Grounds of Inadmissibility)
To apply for a waiver of inadmissibility because of a criminal record, you need to file USCIS Form I-601 (Waiver of Grounds for Inadmissibility).
If your immigration application was filed within the U.S., you can file Form I-601 at the same time you file your immigration application, while your immigration application is being processed, or at the time of your immigration interview.
Filing your I-601 application with your immigration application allows USCIS to process both applications at the same time, and may speed along the process.
If you filed your immigration application from another country, you must file Form I-601 at the time of your U.S. Embassy or Consulate interview.
USCIS Form I-601 Fees
There is a $930 fee associated with Form I-601.
Note: Filing fees and biometric services fees are non-refundable, regardless of any action taken by USCIS on your application.
Establishing Grounds for a Waiver
If your grounds for inadmissibility stems from a criminal conviction; to qualify for a waiver, you must establish:
- If your inadmissibility stems from your participation in prostitution (including procuring others for or receiving the proceeds of prostitution), but you have been rehabilitated and your admission will not be contrary to the national welfare, safety, or security of the U.S.;
- Fifteen years or more have passed since your offense, you have been rehabilitated, and your admission will not be contrary to the national welfare, safety, or security of the U.S.;
- Your qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), or K visa petitioner would experience extreme hardship if you were denied admission; or
- You are an approved Violence Against Women Act self-petitioner.
If your inadmissibility is the result of a violent or dangerous crime, your I-601 application may not be approved unless there exist extraordinary circumstances, possibly involving national security or foreign policy considerations, or if denying your admission would cause exceptional and extremely unusual hardship.
Even if this standard is met, your application may be denied as a matter of discretion.
Establishing Extreme Hardship
To establish extreme hardship means that a qualifying U.S. citizen, lawful permanent resident relative (spouse, son, daughter, parent), or K visa petitioner will experience extreme hardship if you were denied admission.
In this context, extreme hardship goes beyond the normal hardship suffered when family members are separated from one another.
Proving “extreme hardship” is hard but not impossible.