Immigration and Criminal Records

Whether you have been convicted of a crime within the United States or abroad, your criminal record could affect your ability to live as a non-citizen in the United States. Additionally, a criminal record can also result in the deportation of an individual who has a valid non-immigrant visa or even a green card. The Immigration and Nationality Act (INA) outlines crimes that can be the grounds of inadmissibility for individuals. It is important to note that not every crime on a person’s criminal record makes that person inadmissible to the United States.

The INA separates crimes into two main categories for immigration purposes:  crimes of moral turpitude and aggravated felonies. Crimes of moral turpitude refer to any act that is contrary to justice, honesty, or good morals as well as fraud, vileness, or depravity in the private and social duties that a person owes to his or her fellow citizens or to society in general, regardless of whether it is punishable as a crime. Individuals who have been convicted of or admit to committing a crime of moral turpitude are not admissible to the United States.

Aggravated felonies involve crimes that are serious in nature. Some examples include murder, rape, sexual abuse of a minor, drug offenses, explosives or firearms trafficking, money laundering, or any other violent crimes for which the punishment is at least one year of prison time. Additionally, aggravated felonies include a theft offense or burglary offense for which the punishment is at least one year of prison time.

Under the INA, an immigrant waiver is available for most crimes. However, no waiver is permitted for murder, criminal acts involving torture, or drug trafficking offenses. Individuals who are already in the U.S. and convicted of certain crimes are subject to deportation. In the immigration system, waivers are one way of defending against deportation.

The 212(h) waiver is the one that can provide a deportation defense. A 212(h) waiver can be granted if an immigrant establishes that:

  • The criminal activity occurred more than 15 years before the individual applied for the visa, entry, or adjustment of status;
  • The admission of the individual to the U.S. would not be contrary to the national welfare, safety, or security of the country; and
  • The individual has been rehabilitated.

The decision whether to grant a waiver or not lies with the United States Citizenship and Immigration Services (USCIS).

When an individual is applying for a visa or green card, the person is required to disclose whether he or she has ever been convicted of a crime. In some instances, individuals lie, but their crimes are discovered anyway due to fingerprint checks or through other ways. When a person is caught lying on a visa or green card application, he or she is ineligible for virtually all immigration benefits in the U.S. in the future. Thus, it is imperative to tell the truth on all your documentations in order not to permanently jeopardize your ability to enter or live in the United States.

If you have a criminal record and are seeking an immigration visa, it is best to seek the help of a qualified immigration attorney who can advise you about how to handle your case.