By itself, a conviction for a single DUI (driving under the influence) or DWI (driving while intoxicated) does not usually cause immigration problems for green card holders.
Nevertheless, it would be worth checking in with an experienced immigration attorney, because any issue that involves the overlay between criminal and immigration laws gets complicated fast, and the stakes are high. If you have more than one DUI conviction, or if aggravating factors were present in your case (someone was injured, or you were driving with a suspended license, or there was a child in the car, for instance), then the consequences could be more serious.
Any time a green card holder commits a crime, it raises two questions:
"Inadmissibility" refers to a list of reasons within U.S. immigration law that a foreign national can be barred from entry to the United States. (See Section 212 of the Immigration and Nationality Act or I.N.A.) Your original application for a green card was approved only because you were found not to be "inadmissible" (unless you got a waiver of a ground of inadmissibility).
As a green card holder, your request to reenter the U.S. will be tested against the grounds of inadmissibility if you either stayed out of the country for 180 days or more, committed a crime before you left the U.S., or committed a crime while you were away. The relevant criminal grounds of inadmissibility most likely to block a person's right to reentry are:
Upon return to the U.S., the Customs and Border Protection (CBP) officer who greets you will run your fingerprints through various law enforcement databases. If the search turns up information indicating that one of these grounds of inadmissibility applies to you, the officer could put you into "secondary inspection" and you could ultimately be denied reentry to the United States.
For more information on what happens at the border when you return to the U.S. after a criminal conviction, see Can a Green Card Holder With a Criminal Conviction Travel Outside the U.S.?
U.S. immigration law also contains a list of grounds of "deportability," which apply to green card holders. (See I.N.A. § 237.) If something on this list matches you, you can be placed into immigration court (removal) proceedings and ultimately deported from the U.S. even if you haven't taken a trip and tried to return.
Your travel, however, raises the chances that your file will be looked at and your deportability discovered and acted upon. With an order of deportation on your record, you will be barred from returning to the U.S. for many years.
For a person with a DUI on record, the grounds of deportability to worry about include convictions for:
If you are found to be possibly deportable upon return to the U.S., you could be ordered to attend immigration court proceedings for possible removal from the United States.
Although a DUI is not a complete bar to naturalization (applying for U.S. citizenship), it can become a problem for the requirement that an applicant show “good moral character.” For more on how DUIs can affect an application for naturalization, see Got a DUI: Can I File Form N-400 for U.S. Citizenship?
If you have been arrested for a DUI or anything else, definitely contact a criminal attorney as well as an experienced immigration attorney to discuss your potential options to protect you against deportation or other negative immigration consequences.
]]>Various crimes are included as grounds of inadmissibility, creating major problems for people who’ve had run-ins with police and want to get a visa or green card. (These are further enumerated in Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.)
No one will be surprised to hear that major crimes, such as murder or terrorism, disqualify people from receiving a U.S. visa or green card. But even misdemeanors—crimes that the applicable law views as minor enough to punish with less than a year of potential jail time—could possibly make a foreign-born person inadmissible. The U.S. official reviewing the case will look carefully at the definition of the crime (in the state or country where the crime was committed) and the section of federal immigration law regarding inadmissibility to determine whether it’s serious enough to be a ground of inadmissibility. Here, we'll discuss:
If only checking on one’s inadmissibility were a simple matter of looking at U.S. immigration law to see whether a particular misdemeanor or other crime is listed there—but it isn’t that easy. A finding of inadmissibility depends on whether the crime in question matches up with one of the broader descriptions contained in the law used to prosecute the person, and such laws vary from state to state.
With regard to misdemeanors, however the most likely problems arise because they match either the description of a “crime involving moral turpitude” or a drug crime, along with various others.
Many misdemeanors that make a person inadmissible fall under the immigration law concept of a crime involving moral turpitude (CIMT or CMT). Broadly speaking, a CIMT is usually a crime involving an element of fraud, violence, or moral depravity, or an attempt to commit such a crime. (See What’s a Crime of Moral Turpitude According to U.S. Immigration Law?.)
Below are crimes that, although they’re normally prosecuted as misdemeanors, are also commonly considered to match the CIMT ground of inadmissibility under U.S. immigration law:
Additionally, there are crimes that are not specifically CIMTs, such as “disorderly conduct,” but if a person has multiple arrests for this kind of behavior, it could still lead to a visa denial. That's especially true if the person is applying for a nonimmigrant (temporary) visa rather than one that grants U.S. entry as a permanent resident. Consular officers have a lot of discretion in deciding whether to issue most nonimmigrant visas and usually will not issue one to a person with any kind of recent arrest, even if the petty offense exception applies or even if the crime is not a CIMT.
A misdemeanor conviction for drug possession, no matter how small the quantity of drugs, will almost always be a ground of inadmissibility, such as:
A number of other drug-related misdemeanors might also lead to a finding that the applicant is a drug abuser or addict or a drug trafficker; both of which are grounds of inadmissibility.
To further complicate the analysis, a foreign-born person who was never actually convicted of a misdemeanor or other crime they committed can be found inadmissible. For example, someone with a recent arrest for cocaine possession might be found “not guilty” based on a procedural error, but the information on file could lead to a finding that the person is a “drug abuser,” which is a medical ground of ineligibility.
Also, if a conviction is dismissed or expunged after someone completes community service or parole, it is often still considered a conviction for immigration purposes. And if a person has been charged with a crime, but the case has not been resolved, it is unlikely they will receive a visa until a court has made a decision in the case.
If an arrest-related to a controlled substance (defined in Section 102 of The Controlled Substance Act, 21 U.S.C. § 802) gives immigration authorities “reason to believe” that the applicant has ever participated in drug trafficking, or an immigration official has other information available to them indicating that the applicant is or was involved in drug trafficking, then that person (and any spouse and children) would be ineligible for a visa or green card, with no waiver available for a green card.
Despite having been convicted of a crime involving moral turpitude, some people can avoid inadmissibility by means of the petty offense exception.
The petty offense exception takes a crime out of the realm of CIMTs if its maximum penalty is exactly one year or less AND the person was sentenced to no more than six months imprisonment, regardless of the amount of time actually served. The petty offense exception only covers ONE offense and applies only to crimes of moral turpitude (not to drug offenses). For more on this, see When the Petty Offense Exception Excuses a Crime of Moral Turpitude.
For example, solicitation of prostitutes is often considered a misdemeanor and has also been determined to be a crime of moral turpitude in some jurisdictions, but the crime is generally excusable under the petty offense exception because of the short jail time.
The youthful offender exception shields some people who were under 18 years old when they committed a criminal offense that's a CIMT, unless they were tried and convicted as an adult for a felony involving the use of physical force against persons or property. The youthful offender exception does not apply to drug trafficking.
Depending on your particular situation (how long ago the crime occurred, the seriousness of the crime, and whether you have qualifying U.S. relatives), you might be eligible to file for what’s known as a "waiver" in order to cure your ground of inadmissibility. For more information, see Waivers of Inadmissibility: Who Is Eligible and How to Apply.
As you've seen, even misdemeanors can lead to serious immigration consequences and could bar one’s eligibility for a visa or green card. Though a crime might qualify for the petty offense exception, that exception only works for one offense. Therefore, if you have committed a crime (even only a misdemeanor and even if you were not formally convicted) and you are planning on applying for a green card or U.S. visa, it is best to seek the advice of an experienced immigration attorney for help in continuing with your application.
]]>This agency actively monitors social media accounts of people applying for visas outside of the U.S. as well as visa holders, immigrants, and naturalized citizens within the United States. You probably won't know you're being monitored. In fact, reports as recent as 2023 show that the DHS was creating phony accounts for interacting with people online.
DHS issued a public notice in the 2017 Federal Register, describing how it collects and stores social media information on temporary visa holders, immigrants (including legal permanent residents), and even naturalized U.S. citizens (those who were not citizens at birth). After a public comment period, the policy became official.
Under this policy, DHS can collect social media handles or aliases, search for information on the accounts in databases and search engines, and then store the information in what's known as the immigrant's official Alien File, or "A-file."
U.S. Citizenship and Immigration Services (USCIS), the DHS agency that oversees lawful immigration, claims on its website that it is not currently conducting proactive monitoring of social media. USCIS claims it only searches social media accounts “in connection with an individual’s specific request for immigration benefits” as part of the process of reviewing visa petitions. USCIS does not explain what this means, so it’s best to assume that they can and will look at your accounts.
Customs and Border Patrol (CBP) agents may also ask to search mobile electronic devices and social media accounts at the U.S. border or ports of entry. If you are a U.S. citizen, CBP cannot deny you entry to the U.S., but it can seize your electronic device if you refuse to grant this access. If you are not a citizen, CBP can always deny you entry if you refuse to give it access to your electronic device.
When posting on social media, be especially careful not to reveal anything showing or implying that you have ever committed a crime or are not eligible for the visa or status you are seeking or have already received. Also think twice before accepting friend requests from people you don't actually know. You don't need to become buddies with a DHS agent!
Drugs can be a particular problem for would-be immigrants, namely federally controlled substances, even if they are legal in in the state where they're being used. Marijuana is the most obvious example, whether for recreational or medical use. (See Will Legal Use of Marijuana Make Applicant for Immigration Benefits Inadmissible? and Can Green Card Holders Use Medical Marijuana in States Where It's Legal?.)
Consequences for any type of criminal activity are particularly severe for non-citizens. In fact, they can be detained for prolonged periods in an immigration facility for even being suspected of criminal activity; regardless of whether they have been found guilty in a court of law. And even green card holders can be deported for various crimes.
Furthermore, you should be cautious of any posts implying that you have an affiliation with a criminal gang or terrorist organization. DHS is especially concerned with such affiliations and can use your social media posts to argue that you are a danger to the community or a threat to U.S. national security. Even pretending or joking about a gang or terrorist affiliation could put your legal status in the U.S. into jeopardy.
DHS is always looking for the possibility that you've committed fraud in obtaining or trying to obtain your U.S. visa, green card, or citizenship. For example, if you got a green card through marriage but your social media account shows you with your arms regularly around a person who is not your spouse, including on romantic tropical vacations; or you've created a profile on a dating site like Match.com; the validity of your visa application and green card could come into question.
Another example of potentially problematic posts are ones that call into question your date of entry into the U.S. or length of stay in the United States (which can impact basic eligibility for certain immigration benefits). For example, you might claim that you first entered the U.S. in a certain month and year, but social media shows a string of photos of you in another country then. Or, you might have claimed to never have left the U.S., but social media posts show you standing in front of the Tower of London, Japan's Mount Fuji, or other foreign locale.
DHS can claim you committed immigration fraud even if you made an innocent mistake about your dates of entry to the U.S. or trips abroad.
If a U.S. border agent asks for access to your mobile phone or electronic device when you are seeking admission to the U.S., consider whether you are willing to be denied entry so as to keep your information private. To make this decision easier, be sure to delete any private information from your device before traveling to the U.S. and put your phone on airplane mode when arriving at the border or port of entry.
If a border agent asks for the password to your phone or device, you should request to enter it yourself, rather than telling your password directly to the agent. If your mobile phone or device has a great deal of private or privileged information it might be in your best interest to travel with a separate device.
Definitely take time to review the privacy settings on all your social media accounts and look for ways to keep your settings private. You might also want to review your past social media posts and delete any content that you think DHS could potentially use to contend you are a danger to national security, have committed crimes, or have committed visa fraud.
The government might still be able to access deleted posts, however. If you believe the government has collected your social media information, you might want to complete a Freedom of Information Act (FOIA) request for your A-file to see what information the government has already collected about you.
]]>This has led some non-citizens to think they should keep their lack of immigration papers or status a secret—starting with the very lawyer who represents them in criminal court. (A lawyer who is, in many cases, a public defender appointed by the U.S. government because of the non-citizen’s low income.) Other non-citizens might become worried when the attorney starts asking about immigration status, wondering whether this means the attorney plans to turn them in.
To hide this sort of information from your lawyer would, however, be a mistake, for the reasons described below.
Your lawyer is there to help you—even if the lawyer is a public defender who was assigned to you by a government office. (And don't worry, a public defender is a "real" lawyer.)
Any attorney who agrees to represent you has a duty to work for your interests. The lawyer’s job is to try to keep you out of jail and to protect the rights to which you are entitled by law.
In particular, you can be assured that your attorney will not inform Immigration and Customs Enforcement (I.C.E.) of your immigration status. To do so would be a violation of a principle known as attorney-client confidentiality. This means that the information you share with your attorney cannot be shared with anyone else without first getting your consent.
Even if you are in the United States illegally, and have a low income, you are entitled to free legal representation in U.S. criminal courts (though you will have to pay for an attorney in immigration court, regardless of being low income). Your public defender cannot stop representing you based on your immigration status. It is your public defender’s duty to represent you and defend your rights to the fullest extent allowed under the law.
If you are ultimately convicted of a criminal offense, you are potentially subject to removal from the United States. Removal based on a crime is not automatic, however, and is not legally required for every type of crime. Whether someone is, in fact, removable based on a crime depends on the exact charge, conviction, and/or sentence.
Of course, as an undocumented immigrant you are already removable from the United States, for the basic reason that you entered without permission and have (we’re assuming) no legal right to remain. Or perhaps you do have some relief you can apply for, such as asylum—but a criminal record will also make that harder to get approval for.
In any case, it’s possible that, now or in the future, some basis upon which you might apply for U.S. lawful permanent residence (a green card) will arise. Perhaps a spouse or other family member or prospective employer will file a family-based or work-based petition for you to immigrate. But with a crime on your record, you could then be found “inadmissible,” meaning ineligible for virtually any type of green card or U.S. entry.
With the inadmissibility problem in mind, your public defender will need to carefully analyze what you were charged with to figure out whether you can be cleared of guilt and, if not, how to work with prosecutors (perhaps through a plea bargain) to arrive at a conviction and sentence that does the least damage to your immigration prospects.
You won’t find out the fate of your immigration status right away, in criminal court. Only after you face the state criminal court judge might you be served with a notice to appear (NTA) before a judge in immigration court (also called the Executive Office for Immigration Review or EOIR). The immigration court judge will determine your right or ability to remain in the United States, and consider any defenses to removal that you might present, in what’s called a removal proceeding.
Your public defender will no longer be with you at this point—you’ll need to hire an immigration attorney. (See How Expensive Is an Immigration Lawyer?.)
Let’s take a brief look at the types of crimes your public defender will want to avoid being put on your record. Someone can become inadmissible if the U.S. government has reason to believe they were involved in a bad act such as drug trafficking, or if they have a conviction for crimes that involve controlled substances, prostitution, or money laundering. For more information, see Crimes That Make U.S. Visa or Green Card Applicants Inadmissible.
It is also important to understand that federal immigration laws’ definition of what a “conviction” is, and your state laws’ definition of conviction, might not be the same. Under federal immigration law, the definition of a conviction is very loose. You don’t necessarily have to be convicted under state law to be considered convicted under immigration law.
For example, let’s say a defendant accepts a deal where he pleads "no contest" and receives a 14-month deferred sentence. At the completion of the sentence, the conviction would be expunged from the defendant’s record. However, under immigration law, because the judge imposed a sentence as part of plea deal, the conviction will remain part of the defendant’s record for immigration purposes.
In order to receive the most effective assistance, your public defender must be aware of your immigration status. Your attorney might, by law, have additional responsibilities to you because of your being undocumented. If, for example, you are charged with a criminal offense and it is clear from reading the statute that deportation would be virtually mandatory, (as with murder, drug trafficking, rape, armed robbery, and several other violent felonies), your public defender would be required to inform you that deportation is virtually mandatory. (See Padilla v. Kentucky, 559 U.S. 356 (2010).)
If you are charged with a criminal offense and the law is unclear on whether you will be deported, your public defender simply has to tell you that your pending criminal charges carry the risk of immigration consequences.
Your public defender should work with your immigration attorney in order to determine the best possible scenario, because once you are in removal proceedings, it is difficult to undo the effects of a criminal record.
]]>Although being found ineligible for a U.S. visa due to a crime is a permanent problem (one that time won’t erase), applying for a waiver can be a way to overcome this, as separately discussed in How to Obtain a U.S. Visa or Green Card When You Have a Criminal Record.
Here, we'll cover the two most common types of criminal visa ineligibilities, including “crimes involving moral turpitude” (CIMTs) and drug crimes.
The first thing one might wonder is, how would a U.S. embassy or consulate find out about a crime committed outside the United States?
They typically obtain such information using a variety of sources and methods. In some countries, consular officers might have direct access to foreign criminal records. Each embassy also has U.S. personnel who liaise with local law enforcement to improve information-sharing. Arrest records are published online in some countries or published in the daily newspaper.
Additionally, the U.S. visa application form asks several questions designed to ascertain an applicant’s foreign criminal history. In some visa categories, applicants must provide a local police certificate.
Embassies and consulates are continually improving their access to foreign criminal records. Be aware that failing to disclose a prior arrest on a visa application could lead to a permanent visa ineligibility based on misrepresentation.
U.S. immigration law creates many bars to people who've committed crimes involving moral turpitude (CIMTs). These are said to involve “intent to defraud” or other “evil intent.” Examples of CIMTs include not only the obvious (such as murder, aggravated assault, robbery), but various nonviolent crimes such as theft, crimes against the government, and crimes involving fraud.
It is sometimes easy to determine that a particular crime involves evil intent and is therefore a CIMT. For example, “assault with intent to kill” would clearly be a CIMT. In less obvious situations, the consular officer must review the local crime statute to see whether the conviction requires intentional action.
For example, the crime of “passing bad checks” might or might not be a CIMT, depending on the statutory language. If a conviction for passing bad checks in a particular country requires that the person intentionally wrote the check, knowing the check would bounce, then this would be a CIMT because the person would have to have acted with “intent to defraud” to be found guilty.
In other countries, one might be convicted of passing bad checks even without knowing the check would bounce, and thus passing bad checks would not be considered a CIMT by U.S. officials.
Crimes involving drug possession are not CIMTs, but drug trafficking crimes are. This is because U.S. immigration courts have determined that drug trafficking crimes have an element of “evil intent” that drug possession crimes do not.
If you committed a CIMT, you are in theory permanently ineligible for a U.S. visa. Nevertheless, you might still be eligible if you meet the “sentencing exception.” This applies if you have been convicted of only one CIMT and the maximum sentence for that crime in your country (where the crime was committed) is less than one year.
As you’ve seen from the above examples, charging and sentencing practices vary from country to country. For example, in some countries a person who steals cigarettes might be charged with misdemeanor shoplifting, which carries a maximum penalty of less than one year and would thus not result in a visa ineligibility even though it is theft crime and a CIMT. In another country, by contrast, a person who steals cigarettes might be charged with “theft,” and the maximum penalty might be seven years. Even after having received no jail time, this person would still be visa-ineligible, because the maximum penalty exceeds one year and the sentencing exception would thus not apply.
It can be difficult to determine whether certain offenses are CIMTs. Consult with an experienced immigration attorney if you are unsure.
Even if a minor criminal conviction is not a CIMT, such as a “simple assault,” it might still affect your ability to get a nonimmigrant visa. Consular officers have a fair amount of discretion in making visa decisions. If you have a recent conviction, even a minor one, the consular officer might not be convinced that you will abide by U.S. laws on your trip to the U.S. and might not return home when you're supposed to.
All crimes involving drug possession, even small amounts of marijuana, create permanent visa ineligibility. Crimes involving drug trafficking might result in visa ineligibilities in multiple categories. Unlike CIMTs, there is no sentencing exception for drug crimes.
A DUI or DWI (driving while intoxicated or under the influence) conviction does not cause automatic visa ineligibility, but a U.S. consular officer might still deny your visa if it happened recently.
If you have one DUI within the last three years or multiple DUIs within the last ten years, the consular officer must refer you for a medical exam with the embassy panel physician before issuing a visa.
Other offenses involving alcohol, like public intoxication, could also result in a visa denial or referral for a medical exam. Ultimately, if you have committed crimes involving alcohol abuse, the consular officer must be convinced that you will obey U.S. laws while traveling in the U.S. and that you are not a danger to yourself or others.
]]>By itself, a single DUI does not automatically make a foreign-born person inadmissible to the United States. (See Crimes That Make U.S. Visa or Green Card Applicants Inadmissible and the grounds of inadmissibility in Section 212(a) of the Immigration and Nationality Act (I.N.A.).)
But that's not necessarily the only consideration, as described next.
Every applicant for an immigrant visa to the United States (lawful permanent residence or a green card) must get past the official medical exam with a civil surgeon (a doctor) in their country. And one of the things the doctor will be looking at is whether the applicant might be an alcohol abuser.
As stated in a State Department set of guidelines called the Foreign Affairs Manual, at 9 FAM 302.2-7(B)(3)(U), a diagnosis of having a substance-related disorder does not by itself make an applicant ineligible for a U.S. visa, "unless there is evidence of current or past harmful behavior associated with the disorder that has posed or is likely to pose a threat to the property, safety, or welfare of the applicant or others in the future." A DUI or DWI could supply that evidence of harmful behavior.
Also, even if you’re applying only for a nonimmigrant, temporary visa to visit the United States, it’s entirely likely that the U.S. consulate in your home country will, upon seeing the drunk driving conviction on your record, refer you to a civil surgeon for evaluation before making a decision on your visa application. The FAM directs them to do so in cases where there has been:
What happens after that is largely up to the judgment and expertise of the civil surgeon. You will not be allowed to see the report that the doctor prepares concerning you. If you are found inadmissible, however, you may apply for a waiver with which to enter the United States.
Fully evaluating whether you are inadmissible and, if warranted, preparing a waiver request is best done with the help of a U.S. immigration attorney.
]]>The grounds of inadmissibility are found in Section 212(a) of the Immigration and Nationality Act (I.N.A.) (or 8 U.S.C. § 1182(a).) They include various crimes, along with other things like communicable diseases, past immigration violations, and the likelihood of needing government financial assistance.
Crimes, however, tend to present a major problem for many immigrants; as do security violations of various sorts. Still, not every crime or security violations on a person’s record makes them inadmissible. This article discusses the ones that do.
Before we launch in, it's important to note that crimes on a person’s record are also a problem after an immigrant receives a U.S. visa or green card. However, these crimes are analyzed under a separate part of U.S. immigration law, referred to as the grounds of “deportability.” Some overlap exists; anyone who has committed a serious or violent crime is likely to be both inadmissible to the United States and deportable from it.
Here is a summary of the crimes or related activities that the I.N.A. lists as making a visa or green card applicant inadmissible. Note that not all of them require an actual conviction in court. Sometimes the applicant simply admitting to a crime or ground of inadmissibility to a U.S. immigration official or elsewhere is enough.
These are the straightforward crimes that are mentioned in the immigration law. The statute also lists a number of security violations, such as involvement in espionage, sabotage, terrorism, Nazi persecution, totalitarian parties, and so forth. Do not rely on this list alone in assessing your immigration situation; get help from an experienced immigration attorney.
Let's say, for example, that you were involved in a credit card scheme and, as a result, were convicted of (1) illegal possession of credit cards, for which you received a one-year sentence, (2) fraudulent use of credit cards, for which you received a two-year sentence, and (3) forgery, for which you received a two-year sentence. That adds up to three offenses, with a total aggregate sentence time of five years, thus making you inadmissible.
Let's look at some other issues that come up with multiple convictions.
Many non-citizens become inadmissible due to controlled substance violations—whether a conviction or their own admission to a felony or misdemeanor drug offense. Not only do drug offenses trigger inadmissibility, but they permanently preclude non-citizens from obtaining lawful permanent resident status.
The only exception is for simple possession of 30 grams or less of marijuana, if the person does not have any prior drug convictions. However, this exception can pose problems for defendants attempting to negotiate a plea bargain, because a simple possession offense in state court can still be counted as an added conviction in immigration court.
An immigration judge can, however, waive the conviction for possession of marijuana if the amount is under 30 grams. With such a waiver, the conviction will not count towards the total number of convictions.
For a defendant in criminal court, being accused of possession of drug paraphernalia can carry a light sentence—a fact that often leads defense attorneys to bargain for such a charge. But a non-citizen seeking relief in immigration court who has a conviction for possession of drug paraphernalia on record can become inadmissible. Currently, there is no waiver for possession of drug paraphernalia, so a conviction would count towards a non-citizen's total number of convictions.
A non-citizen is inadmissible for a conviction of a crime involving moral turpitude. See What's a Crime of Moral Turpitude According to U.S. Immigration Law for a discussion of CMTs. For purposes of inadmissibility, there is an exception for petty offenses. A CMT cannot be a basis for inadmissibility if you have committed only one crime, and the maximum possible sentence for that offense is one year or less, and the actual sentence of imprisonment, whether active or suspended, was six months or less.
If you have been convicted of one CMT and meet the criteria just described, your conviction will not be counted for multiple conviction purposes. However, if you have multiple prior CMT convictions, you will not qualify for this petty offense exception, and your convictions will count towards the total.
As a non-citizen, you might believe you won't have problems with inadmissibility because you've had one or more convictions on your record expunged or because you received deferred prosecution, probation, or some form of post-conviction relief (likely as a result of being a first-time offender).
But that's not always true, largely because of the way a conviction is defined for immigration purposes. Any punishment, penalty, or term of imprisonment ordered by the court, such as incarceration, probation, drug and alcohol programs, community service, or anger management can qualify as a conviction, thus further adding to the number of convictions on one's record. (See I.N.A. § 101(a)(48)(A).)
Any time someone applies for a visa or green card, they are asked to state whether they have ever been arrested for or convicted of a crime. Of course, some people lie on their applications—but in many cases the lies are discovered, because fingerprint checks are a requirement of most immigration applications. And once a person is caught in a lie, they become ineligible for virtually any U.S. immigration benefit in the future.
A record of having been involved in terrorism, presented a threat to U.S. security, or been affiliated with other anti-humanitarian beliefs or groups also make a visa or green card applicant inadmissible, as follows.
A noncitizen will be found inadmissible to the U.S. if it appears that their reason for attempting to enter is to engage in legal violations relating to espionage, sabotage, prohibited export of goods, technology, or sensitive information, any other unlawful activity, or to oppose, control, or overthrow the U.S. government by force, violence, or other unlawful means. In other words, spies and saboteurs will never be given a U.S. visa (if the U.S. government knows about their background or intentions).
A noncitizen will be found inadmissible to the U.S. if they have virtually any sort of association with terrorism or a group that the U.S. considers terrorist, including if the person:
Check the statute for full definitions of terrorist activity, terrorist organization, and so on. In brief, terrorist activity is against the law where it was committed or would be unlawful in the U.S. and involves hijacking or sabotage; seizing, detaining, or threatening to kill or injure people in order to compel action by the governmental or some person; violent attacks upon an internationally protected persons; assassination; use of biological or chemical agents, nuclear weapons, or explosives, and so on.
This section of the law is so broad that it could sweep in people who are not actually terrorists. Let's say, for instance, that someone was forced to provide food to a local terrorist group as a condition for not torching their house. Would that person be inadmissible to the U.S.? It's quite possible.
In response, the U.S. government has said that it will make exceptions for people who were engaging in routine commercial or social transactions, providing humanitarian assistance, or were under substantial pressure, if such people can also satisfy a long list of criteria described in the Federal Register at FR Doc. 2014-02357.
If a noncitizen's entry to the U.S. would, in the opinion of the Secretary of State, have potentially serious adverse foreign policy consequences for the U.S., that person will be found inadmissible and denied a visa or green card.
Exceptions may be made for foreign government officials or candidates for foreign office or anyone whose beliefs, statements, or associations would be lawful within the United States.
Noncitizens who are or have been members of or affiliated with the Communist or any other totalitarian party (including subdivisions or affiliated organizations), whether domestic or foreign, will be found inadmissible and denied a visa or green card.
Exceptions may be made if the person became a member of the party involuntarily or force of law, or when below the age of 16, or in order to get a job, food rations, or other life essentials.
Another exception applies if the applicant for a visa or immigration benefit can prove that they are not a threat to U.S. security and the membership or affiliation ended at least two years ago, or five years ago if the party in question controlled the government.
Close family members who pose no threat may also qualify for exceptions in the discretion of the U.S. Attorney General, for humanitarian purposes, to assure family unity, or when it is otherwise in the U.S. public interest.
Noncitizens who, between March 23, 1933, and May 8, 1945, ordered, incited, assisted, or otherwise participated in persecution based on race, religion, national origin, or political opinion under the direction of or in association with the Nazi German government (including occupied areas and allies), will be found inadmissible.
Noncitizens who, outside the U.S., have committed, ordered, incited, assisted, or otherwise participated in the commission of torture or extrajudicial killing will be found inadmissible.
Noncitizens who have recruited or used child soldiers are inadmissible. Note that the child soldiers themselves will not be found inadmissible based on their position, though they could fall under one of the other bases of inadmissibility listed above.
If you are ineligible for a U.S. nonimmigrant (temporary) visa due to a crime, whether you'll be allowed to ask for a waiver depends on the inclinations of the officer at the U.S. embassy or consulate who reviews your case. As is true with most nonimmigrant visa applications, the consular officer must, in order to approve you, first be convinced that you will return to your home country at the end of your trip to the United States. The consular officer must also be convinced that you will abide by U.S. laws while in the U.S., which might be difficult if you have any sort of recent criminal conviction.
If the consular officer is convinced that you will return to your home country, will abide by U.S. laws, and will meet all the other specific criteria for your visa, the consular officer might be willing to request and recommend a waiver from the U.S. Department of Homeland Security (DHS).
The consular officer will also need to consider the recency and seriousness of the offense, the purpose of your travel to the United States, and the U.S. public interest served by your travel before deciding whether to recommend a waiver to DHS. For example, an applicant who had a conviction 10 years ago at age 20 for marijuana possession and who is now a responsible professional traveling to the U.S. at the request of a U.S. business might be a good candidate for a waiver.
There is nothing that you personally need to do to request the waiver, unless the consular officer tells you otherwise. In some cases, you might be asked to provide a copy of your foreign police certificate or court records before the consular officer can submit the waiver request. The officer should explicitly tell you at the end of the interview if a waiver will be requested on your behalf, what documentation you need to provide for it, and approximately how long it should take to receive the waiver results.
Waivers can sometimes take months to be approved. Also, the nonimmigrant visa you receive based on that waiver might be valid for only one trip or U.S. entry.
Someone obtaining an immigrant visa will be receiving the right to live in the U.S. on a permanent basis, and thus the criteria for receiving a waiver of one's criminal record is totally different than with nonimmigrant visas. Procedurally speaking, the consular officer has less of an active role, and has no power to request a waiver on your behalf. Instead, the consular officer will tell you under which section of the law you are ineligible and advise you of whether a waiver is possible. Then you, or your attorney, will need to request the waiver through U.S. Citizenship and Immigration Services (USCIS).
In most cases, Form I-601 is the one used for requesting an immigrant visa waiver. (See How to Prepare Form I-601 to Request a Waiver of Inadmissibility.)
For immigrant visa applicants, waivers are not available for any drug possession crime, other than marijuana possession under 30 grams. Waivers for other criminal ineligibilities are available only to immigrants with certain family relationships to U.S. citizens or permanent residents, unless the crime occurred more than 15 years ago.
Depending on the laws where the crime was committed, it might be possible to retroactively expunge, or erase, a crime from one's record. Expungements are also known as "spent convictions," "post-conviction relief," or something else, depending on the country.
Before you attempt this as a way to avoid having to ask for a waiver, however, realize that expunging an offense from your record can be expensive and tends to have no affect on visa eligibility. Countries have different standards for listing crimes on police records and different rules for when someone must disclose criminal convictions. These rules are applicable only in that country and have no bearing on the requirements for disclosing your criminal history to U.S. immigration officials.
For example, in some countries, minor offenses are wiped off a person's police record after a period of years. Or the country's law might state that after a certain time period has passed, a person is no longer required to disclose the criminal conviction to employers. Still, the crime likely remains relevant to your U.S. visa eligibility.
If you have a crime or security violation on your record, or see anything on the above list that makes you question your admissibility to the United States, by all means consult with an experienced attorney . It’s possible that you do not match the grounds of inadmissibility listed in the statute, or that you qualify for a waiver of inadmissibility, but you would definitely need an attorney’s help in determining this or preparing the necessary waiver application.
Also see the Inadmissibility and Waivers section of Nolo's website.
]]>But now you want to travel abroad to see a relative, and you’re worried. What happens at the U.S. border when you try to return? Could your criminal conviction cause you any issues?
The first thing you should do is research the consequences of your criminal conviction and whether it could, in fact, make you deportable or inadmissible. See Crimes That Will Make an Immigrant Deportable and Crimes That Make U.S. Visa or Green Card Applicants Inadmissible (Ineligible for a Visa or Green Card). If you're still in doubt, consult an attorney.
There are situations where someone has committed a deportable crime yet never come to the attention of U.S. immigration authorities. If this describes your case, then traveling abroad could have serious consequences, including the U.S. government refusing to let you into the country or placing you into removal proceedings upon arrival. You would then need to first try and figure out if there is a way to waive your crime or fix your immigration status, which could involve applying for a green card all over again.
But the more likely scenario is that you have committed a non-deportable crime, which is why the government never came knocking on your door. Still, that doesn’t mean that you can travel worry-free.
Normally, leaving and reentering the U.S. won’t cause someone issues unless they've committed a deportable crime. But there are situations where the U.S. government treats a returning resident as someone seeking a new admission to the United States. This could affect you if:
These "new admission" rules make things more complicated, because there might be situations in which you are not deportable (meaning you don't match any of the legal grounds for the government to remove you from the U.S.) but you are nevertheless inadmissible (meaning you match one of the legal grounds upon which the government can stop you from entering the U.S.).
For example, if you commit one crime involving moral turpitude (CIMT), but it is not within five years of being admitted as a permanent resident, then you are not deportable. But that one crime will make you inadmissible, no matter when it took place.
If you fit one of the conditions listed above, then the U.S. government can treat you like you are seeking a new entry to the United States, applying all the grounds of inadmissibility found in U.S. immigration law (including criminal and other grounds).
Also, pay special attention to the length of your planned travel. Many people falsely believe that if they travel outside the U.S. for less than one year, they will be fine. But traveling for over six months can be an issue if you are inadmissible. If, for example, you have been convicted of a crime that makes you inadmissible, or if you admit to the border officer that you have committed a CIMT or a controlled substance offense, you might be placed in removal proceedings, as described below.
The U.S. government has provided a solution for permanent residents who want to travel over six months or one year without abandoning their residence. The government can issue a reentry permit, which authorizes the person to reenter the U.S. for up to two years. Many people think that having a reentry permit saves them from having to worry about any of the ramifications of traveling abroad.
Unfortunately, this is not the case. A reentry permit normally prevents the border officers from finding that you abandoned permanent residence, nothing more. You will still be seeking a new admission and will need to make sure you are not inadmissible. The U.S. border officer also has the ability to decide that you intended to give up your permanent residence even with a reentry permit, if other circumstances show that your trip abroad was not actually meant to be temporary.
If the U.S. border protection officer decides that you are inadmissible for any reason, you will be placed in removal proceedings. This means that you will most likely also be detained in an immigration detention facility. You will then have an opportunity to present your case before an immigration judge.
As an "arriving alien" (someone who arrives at the border but is not allowed to legally enter; a category which the B.I.A. says includes LPRs who fit the criteria on the list above), you will not be eligible to pay a bond in order to leave detention pending a decision in your case. That means you will likely have to defend your case before an immigration judge while staying in a detention facility.
As you can see, the pitfalls to traveling abroad are can be severe, although rare. If you have committed a crime, you must spend some time trying to figure out whether it makes you inadmissible. If it does, it’s best to avoid traveling overseas if possible. For example, see Will a Green Card Holder With a DUI Be Allowed to Reenter the U.S.?
You are most likely to run into issues of inadmissibility if you take long foreign trips. Keeping any trips less than six months is a good idea in any case, to preserve your eligibility for citizenship (see Who Can Apply for U.S. Citizenship). But it is also important for avoiding issues of inadmissibility.
If you must travel as a permanent resident, and are unsure whether your crime makes you inadmissible, then you should at a minimum attempt to keep the trip as short as possible, and ideally consult with an immigration attorney.
Lastly, apply for citizenship as soon as you are eligible (bearing in mind the risk that your criminal record will place you into removal proceedings once you bring yourself to the attention of U.S. immigration authorities). Navigating the requirements of keeping your green card can be frustrating and complex. As a citizen, you can visit your home country any time you want and for any amount of time. Then you can truly travel worry-free.
]]>First, you’ll want to get a better sense of whether your foreign criminal conviction will result in visa ineligibility. This varies from country to country and is discussed in, Will a Foreign Criminal Conviction Mean My U.S. Visa Will Be Denied?.
Even with a criminal ineligibility, you might nevertheless be able to receive a U.S. visa if you qualify for a waiver, as discussed below. The process and criteria for waivers is different for nonimmigrant visas and immigrant visas.
If you are ineligible for a U.S. nonimmigrant (temporary) visa due to a crime, whether you’ll be allowed to ask for a waiver depends on the inclinations of the officer at the U.S. embassy or consulate who reviews your case.
As is true with most nonimmigrant visa applications, the consular officer must, in order to approve you, first be convinced that you will return to your home country at the end of your trip to the United States. The consular officer must also be convinced that you will abide by U.S. laws while in the U.S., which might be difficult if you have any sort of recent criminal conviction.
If the consular officer is convinced that you will return to your home country, will abide by U.S. laws, and will meet all the other specific criteria for your visa, the consular officer might be willing to request and recommend a waiver from the U.S. Department of Homeland Security (DHS).
The consular officer will also need to consider the recency and seriousness of the offense, the purpose of your travel to the United States, and the U.S. public interest served by your travel before deciding whether to recommend a waiver to DHS. For example, an applicant who had a conviction ten years ago at age 20 for marijuana possession and who is now a responsible professional traveling to the U.S. at the request of a U.S. business might be a good candidate for a waiver.
There is nothing that you personally need to do to request the waiver, unless the consular officer tells you otherwise. In some cases, you might be asked to provide a copy of your foreign police certificate or court records before the consular officer can submit the waiver request. The officer should explicitly tell you at the end of the interview if a waiver will be requested on your behalf, what documentation you need to provide for it, and approximately how long it should take to receive the waiver results.
Waivers can sometimes take months to be approved, however. Also, the nonimmigrant visa you receive based on that waiver might be valid for only one trip or U.S. entry.
Someone obtaining an immigrant visa will be receiving the right to live in the U.S. on a permanent basis, and thus the criteria for receiving a waiver of one’s criminal record is totally different than with nonimmigrant visas.
Procedurally speaking, the consular officer has less of an active role, and has no power to request a waiver on your behalf. Instead, the consular officer will tell you under which section of the law you are ineligible and advise you of whether a waiver is possible. Then you, or your attorney, will need to request the waiver through U.S. Citizenship and Immigration Services (USCIS).
In most cases, Form I-601 is the one used for requesting an immigrant visa waiver. (See How to Prepare Form I-601 to Request a Waiver of Inadmissibility.)
Immigrant visa waivers must meet strict criteria or DHS will not approve them. If the consular officer told you that you need a waiver of ineligibility, you’d be wise to seek the assistance of a U.S.-based immigration attorney.
For immigrant visa applicants, waivers are not available for any drug possession crime, other than marijuana possession under 30 grams. Waivers for other criminal ineligibilities are available only to immigrants with certain family relationships to U.S. citizens or permanent residents, unless the crime occurred more than 15 years ago.
Depending on the laws where the crime was committed, it might be possible to retroactively expunge, or erase, a crime from one’s record. Expungements are also known as “spent convictions,” “post-conviction relief,” or something else, depending on the country.
Before you attempt this as a way to avoid having to ask for a waiver, however, realize that expunging an offense from your record can be expensive and tends to have no affect on visa eligibility.
Countries have different standards for listing crimes on police records and different rules for when someone must disclose criminal convictions. These rules are applicable only in that country and have no bearing on the requirements for disclosing your criminal history to U.S. immigration officials.
For example, in some countries, minor offenses are wiped off a person’s police record after a period of years. Or the country’s law might state that after a certain time period has passed, a person is no longer required to disclose the criminal conviction to employers. Still, the crime likely remains relevant to your U.S. visa eligibility.
If you have doubts as to whether a crime that no longer appears on your record will result in a visa ineligibility or you are hoping to obtain an expungement to improve your chances of receiving a U.S. visa, a U.S. immigration attorney can give you guidance, but might also need to consult with a local attorney in your country in order to completely understand how local laws regarding expungement relate to U.S. immigration law.
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