The mere fact that you have some sort of criminal conviction in your past will not, by itself, automatically disqualify you from getting an immigration benefit to the United States. After all, very few people are able to go their entire life without having some form of consequential interaction with the law.
Some items on a record will likely make no difference whatsoever, such as minor traffic offenses that do not result in prison time. More seriously, some countries with oppressive regimes may enforce laws that are purely political in nature; for instance, a person may be imprisoned for practicing an “illegal” religion or for simply and without violence speaking out in opposition to their government’s policies. In such cases, these so-called “crimes” actually reflect basic American values, and if the applicant can satisfactorily demonstrate that their conviction was of this sort then their “criminal record” may help them gain the asylum they are seeking.
How your specific record will impact your immigrant visa process will depend entirely on two factors: the nature of the offenses on your record (what kind they are and how many of them), and whether you were honest and thorough in disclosing them on your application.
Are there some crimes that will automatically make me ineligible for a green card?
Yes, there are some crimes that simply make an applicant “permanently inadmissible” as an immigrant. We should note here that the rules about criminal records in the immigration process are different from the rules in other areas of life. For instance, a judge may order a conviction to be sealed or may “expunge” (“erase”) a particular record altogether. Such an action clears the way for the offender to be readmitted into society at large. However, as far as the U.S. Customs and Immigration Service (USCIS) is concerned, the original conviction is still a part of the person’s history, and if it falls under a particular category, then they will reject that person’s application in spite of the later alteration to their record.
According to the Immigration and Nationality Act, there are several of those categories of offenses that fall under this “permanent inadmissibility” heading:
Crimes labeled “aggravated felonies.”
This category covers a broad spectrum of both violent and non-violent offenses. In some cases, for example, murder or crimes of a sexual nature (especially against children), only a single offense or conspiracy to participate in the offense is required to establish grounds of inadmissibility. Furthermore, in these cases, a formal conviction by a court is not necessary; merely admitting to such an offense (for instance, during an immigration interview) will result in a rejection of the application.
However, other offenses in this category must include not just a formal conviction but also a particular minimum sentence. For instance, a conviction of theft that resulted in a prison term of greater than one year will cause an automatic rejection, whereas it is possible to obtain legal forgiveness – a “waiver” – for a conviction of theft with a sentence of less than one year.
The following list is a sample of the types of crimes that fall under the category of “aggravated felonies”:
- Violent crimes
- Rape, child pornography, prostitution
- Racketeering, bribery, extortion
- Explosive materials / firearm offenses
- Tax fraud, counterfeiting, forgery
- Obstruction of justice, perjury
- Violations of immigration law (smuggling, document falsification)
Crimes of “moral turpitude.”
“Crimes involving moral turpitude” is a fancy legal term that essentially means “crimes of moral depravity.” Basically, as described in a 1992 ruling by the Board of Immigration Appeals (BIA), such a crime is so heinous that it “shocks the public conscience as being inherently base,” and must have been committed with “a vicious motive or corrupt mind.”
Unfortunately, the immigration laws of the U.S. do not provide a firm definition or list of specific crimes that fall under this category. That leaves it very much up to the discretion of the courts (especially BIA) whether a particular crime on an applicant’s record is truly of “moral turpitude” or not. Then, as individual decisions accumulate, those rulings help to provide a framework for future cases.
There is some overlap, of course, between crimes that are labeled “involving moral turpitude” and “aggravated felonies.” Murder, torture, and sexual crimes are top of the list. Other crimes, for example, spousal abuse, aggravated assault, kidnapping, mayhem, and even animal fighting, have also been found by immigration courts to fall under this category. There is also a special sub-category of crimes that were committed by officials of rogue regimes, like genocide and violent forms of religious persecution, which permanently remove any possibility of receiving a green card.
Crimes involving illegal drugs.
Trafficking in illegal drugs and even possession is considered to be grounds for inadmissibility. One exception to this rule: if you are caught and convicted of possessing 30 grams (approximately 1 ounce) or less of marijuana, you can successfully apply for a waiver. Note: this rule and this exception are still part of federal immigration law even though a growing number of individual states are passing laws that legalize the recreational use of marijuana.
But that is the only exception. Otherwise, if you are ever caught with drugs on your person and convicted of it, your visa application will be rejected.
What about less serious crimes?
When USCIS reviews immigrant visa applications, one of the things they look for is if the applicant possesses “good moral character.” Even less severe crimes, if committed repeatedly, will likely red flag that application. On the other hand, if the offense is truly minor, and moreover if the applicant can demonstrate significant reform since the time of the event, then it is possible for them to receive official, legal forgiveness – called a “waiver” – so that their application can move forward. However, this forgiveness is not automatic; it must be asked for. Moreover, it is best to submit a waiver application right away with the primary application (I-485 Adjustment of Status if within the U.S.; DS-260 Electronic Immigrant Visa if outside the U.S.).
Honesty is the best policy.
The American legal system is built on the ideal of telling “the truth, the whole truth, and nothing but the truth.” If you are applying for an immigrant visa, it is imperative that you live by that ideal. If you have had a run-in with the law, you need to disclose it. If you are not sure if a particular offense is worth reporting, err on the side of caution and report it. Remember: the USCIS will likely discover the truth about your record anyway. If you are honest with them first, that will reflect more positively on you than if you try to conceal something.
You need a lawyer.
If you are applying for a green card and are worried about a crime you committed in the past, you really should speak to an attorney first. The experienced immigration attorneys at Philip Levin & Associates can help you determine if you are even eligible to apply. If we believe you may be eligible, we can then help you collect and prepare all your necessary documentation to accompany your green card application. This would especially include applications for any waivers you may need. Naturally, we can never guarantee a particular outcome, and a criminal record in your past will certainly complicate the process. But your chances of success greatly increase with competent legal help and representation. Reach out to us today, and let us give you the guidance you need.