Immigration law is complicated, and it can be difficult to know what exactly your criminal record means for your application. Understandably, for many individuals, the fear of potentially being denied a green card based on the results of their criminal background check can be overwhelming.
The truth is that having a criminal case on your record can jeopardize your chances of obtaining a U.S. green card. Having said that, you may qualify for a waiver of inadmissibility based on the specifics of your criminal record. If approved, the USCIS will excuse your criminal history.
So let’s discuss the categories of crimes, what it means to have a criminal record, and how it can affect your green card application.
How Does The USCIS Access Criminal Records?
The USCIS uses the following sources to verify the criminal history of an individual as part of its evaluation of an immigration application or petition:
- Federal Bureau of Investigation (FBI) fingerprint check;
- State criminal record repositories;
- Local, state, and federal law enforcement agencies;
- Court records.
The USCIS may also take into account non-conviction information, such as charges and arrests, in determining an individual’s eligibility for immigration benefits.
Additionally, the immigration agency has also the ability to obtain information from foreign governments and law enforcement agencies through various international agreements and arrangements.
For example, the USCIS may access criminal record information through sources such as Interpol, bilateral agreements, information-sharing arrangements, and mutual legal assistance treaties (MLATs).
It is pertinent to note the USCIS may also consider a criminal activity that took place outside of the United States in evaluating an individual’s eligibility for a green card.
Which Laws Are Applicable When The Immigration Agency Evaluates Applicants’ Criminal Records?
The USCIS considers the following laws when evaluating the criminal record of a green card applicant to determine whether the applicant is eligible for a green card and if any waiver of inadmissibility is available:
- Immigration and Nationality Act (INA): The INA sets forth the eligibility requirements for a green card and defines the grounds of inadmissibility, including certain criminal offenses. It is the primary law governing immigration to the United States.
- Code of Federal Regulations (CFR): The CFR is a compilation of rules and regulations issued by federal agencies, including the USCIS. The CFR provides further guidance on the interpretation and implementation of the INA.
- Case law: The USCIS also considers relevant case law, which includes judicial decisions and legal interpretations of immigration law. Case law can provide additional guidance on how the USCIS should evaluate a green card applicant’s criminal record.
What Are Some Examples of Crimes That Make You Inadmissible?
The following three types of criminal convictions could bar you from receiving a green card.
1. Aggravated Felonies
Aggravated felonies are serious crimes that can result in a prison sentence of one year or more. Examples of aggravated felonies include murder, rape, child molestation, etc. In addition, an aggravated felony is one of the most serious criminal offenses that can prevent you from getting a U.S. green card or other immigration benefits.
In fact, individuals charged with these types of crimes are prime candidates for deportation and could be subject to other harsh penalties.
It is pertinent to note that immigration policies change over time. What might have been considered a minor offense in the past could now be classified as an aggravated felony.
For example, as of writing this article, there are more than 30 offenses that may qualify as ‘aggravated felonies’ under the U.S. immigration system. These include a battery, filing false tax returns, or even failure to appear in court (including immigration courts), etc.
2. Crimes Involving Moral Turpitude
Crimes of moral turpitude are generally defined as inherently evil or morally perverse offenses. Examples of crimes of moral turpitude include murder, rape, child molestation, robbery, and fraud.
A crime of moral turpitude is one of the most common reasons for the denial of a green card. However, a waiver may still be possible based on the details of your criminal case, which we will further examine.
3. Illegal Drug Involvement
A drug-related crime will likely make you ineligible for an immigrant visa and green card. In fact, simply being arrested for drug possession can make you ineligible even if you have not been convicted of a crime.
It’s because drug possession is considered a crime of moral turpitude by U.S. immigration authorities. Such crimes indicate a lack of good moral character, which is a requirement for obtaining a green card. Drug possession is also considered a drug trafficking-related offense, which makes a person inadmissible to the U.S. under immigration law.
Even if you have never been arrested or convicted of a crime, simply admitting to past illegal drug use can make you ineligible for a green card. This explains why certain applicants must pass a green card medical exam.
Categorically speaking, it’s not advisable to lie about your drug involvement, whether it’s drug trafficking, abuse, or both. This is because lying in your application is considered ‘willful misrepresentation’, yet another ground for inadmissibility when applying for a green card.
You may remain ineligible to obtain a green card if you have a history of illegal drug involvement. This may be the case even if the said drug is legal in your current state and/or country. For instance, although recreational marijuana is legal in many U.S. States, it is still illegal at the federal level.
As of the time this article was written, cannabis is still illegal under federal law in the United States. This is because the USCIS is a federal government agency and is therefore bound to enforce federal law. Therefore, even if cannabis is legal for medicinal or recreational use under state law, it remains illegal under federal law and can result in inadmissibility for immigration purposes.
If you have questions about criminal charges that could affect your eligibility; you should consult with an immigration attorney before proceeding with your application to register for permanent residence. The right attorney can help you understand the specific criminal law that applies to your case and how to navigate this hurdle.
What Are Criminal Records Waivers and Exceptions in the Green Card Application Process?
Although you may still be eligible for a green card even with a criminal record, the nature of the record will determine your eligibility. The Immigration and Nationality Act (INA) contains provisions that allow certain individuals with criminal records to apply for a green card, either through a waiver or by qualifying for an exception.
Here’s how these two alternatives work.
1. Waiver of Inadmissibility
You may be eligible for a waiver of inadmissibility if the following conditions are true:
- your criminal offense was committed more than 15 years before your application for a green card;
- you have been rehabilitated since your violation; and
- if your admission to the United States would not pose a danger to public safety.
To obtain a waiver, you must file Form I-601, Application for Waiver of Grounds of Inadmissibility.
You may be eligible for an exception if your criminal offense meets the following conditions:
- It was committed more than five years ago and was a non-violent offense
- The crime did not involve drugs or alcohol
- The crime was committed when you were under the age of 18
- You are no longer serving a sentence for the said crime
You can then file the waiver request with your green card application.
How To Navigating the Immigration System If You Have a Criminal Record?
Here are some tips to help you navigate these complexities.
- Ensure you understand the requirements for obtaining a green card, especially for your specific eligibility category. This includes understanding any criminal history requirements before submitting your application to the USCIS.
- Gather the required documentation. You will need to gather documentation to support your application. This may include court documents, a police certificate, and character references to prove that you are a reformed individual.
- Contact an immigration attorney. An experienced immigration attorney can help you navigate the green card process and help convince the USCIS that you are eligible for a green card despite your criminal record.
- Always tell the truth when asked questions about your criminal history. Lying on an immigration form could jeopardize the entire petition. This is because the U.S. government will likely have your records on file. So when the immigration officer asks you about your criminal record, chances are they want to test your integrity and honesty. If you lie about your criminal record, the officer will likely deny you a green card on the grounds of willful misrepresentation. This could put you at risk of deportation and denial of other immigration benefits.
- If eligible, you can apply for a waiver during your green card interview, if you are filing for a green card from outside the United States.
Can You Sponsor Someone For a Green Card With a Criminal Record?
It depends on the types of criminal convictions when they occurred, and whether the person has been rehabilitated. In general, however, U.S. citizens with a criminal record may still be able to sponsor a green card if they meet all other eligibility requirements and demonstrate that they pose no threat or danger to public safety.
Over and above, individuals charged with a crime against a minor cannot sponsor a foreign national for a green card. These offenses are described in detail in the Adam Walsh Child Protection and Safety Act, which is now also a part of the Immigration and Nationality Act.
Can I Renew My Green Card With a Criminal Conviction?
Again, it depends on the nature of the crime. For example, you might not be able to renew your green card if you committed certain crimes, such as an aggravated felony, crimes involving moral turpitude, and drug-related crimes. The said crime should also not qualify for an exception or waiver. In that case, if your application for a green card renewal is rejected, you may be at risk of deportation from the U.S.
Can You Become a U.S. Citizen or Green Card Holder if You Have a Misdemeanor?
If you have a misdemeanor on your record, you may still be eligible for citizenship in the United States. In general, misdemeanors are not considered as serious as felonies and thus may not automatically disqualify you from acquiring citizenship. For example, individuals found in possession of 30 grams or less of marijuana may qualify for a waiver.
However, some misdemeanors may bar you from citizenship, especially if the USCIS official believes you are not a person of good moral character. The bottom line is that the USCIS officer has the final say regarding whether or not you are eligible for citizenship with a misdemeanor conviction.
Can U.S. Immigration See the Criminal Record of a Green Card Applicant?
Yes, U.S. immigration officers will have access to your criminal records even before you sit with them for a green card interview. They usually obtain this record from your fingerprints and government-issued documents. For this reason, it is always advisable to be truthful about your record to avoid being disqualified from obtaining a green card due to ‘willful misrepresentation.’
A criminal record can certainly impact your ability to obtain a green card. This is because certain crimes may make you ineligible for admission. However, it is still possible for many individuals to get a green card with a criminal record if they meet the other criteria and are not inadmissible to the United States under United States immigration law. If you are concerned about your criminal record, talk to an immigration attorney before filing to register permanent residence.