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.
]]>Let's take a reasonably likely scenario: You lived in Amsterdam for a while and smoked marijuana there on a few occasions. This wasn't against the law in that country. Could you nevertheless be denied entry into the United States? It's possible you could be found inadmissible to the U.S. in a situation like this, but not likely.
Another common scenario: You are currently in the U.S. on a temporary visa, and want to apply for a different type of visa (change your immigration status). You live in California, which has legalized recreational marijuana. Could your visa be denied on that basis? Once again, it’s possible you could be found inadmissible (and therefore denied a visa), but only if there is reason to believe you’ve committed a federal crime.
There are two grounds of inadmissibility to worry about if you've ever used marijuana without being convicted of a crime for doing so: health grounds and criminal grounds, as discussed below.
The doctor who performs your immigration medical exam (required for all immigrant visas, but not usually for nonimmigrant or temporary visas) must determine whether you are inadmissible on the basis of having:
(These grounds of inadmissibility are found in Immigration and Nationality Act Section 212(a)(1)(A)(iii) and (iv).)
There is little risk that occasional marijuana use, standing alone, will be diagnosed as a physical or mental disorder, although if you have exhibited harmful behavior resulting from your use of marijuana, you could be at risk of being found inadmissible.
The drug abuser or addict ground of inadmissibility is not often used to find inadmissibility, because it is difficult to define and prove who is a "drug abuser" or "drug addict." However, frequent marijuana use, even if legal, puts you at risk of being found inadmissible as an abuser or addict. Certainly you should be concerned if your legal marijuana use has created some problem that requires you to admit to abuse or addiction in order to participate in a court-ordered program or therapy.
For more information on how drug addiction or other health issues can affect visa eligibility, see Can a Recovering Drug Addict Get a U.S. Visa or Green Card? and How Health Issues Can Make You Inadmissible to the U.S.
There are places in the world where use of marijuana is not a crime. If your only use of marijuana was done legally under the laws of a foreign country, you do not have to worry about criminal grounds of inadmissibility.
You might, still need to worry, however, about marijuana use in a U.S. state that has legalized or decriminalized marijuana. This is because possession of marijuana for any purpose, including personal use, remains a crime under U.S. federal law. This includes the medical marijuana prescribed by a doctor under state law. (For more information on medical marijuana use, see Can Green Card Holders Use Medical Marijuana in States Where It's Legal?)
Even if the federal government did not convict you of a marijuana offense, immigration law makes you inadmissible if you admit to past actions that would be punishable under federal law.
(This ground of inadmissibility is found in Immigration and Nationality Act Section 212(a)(2)(A)(i)(II).)
How do you "admit" to possessing marijuana, or "admit" to doing all the things that would make you guilty of possessing marijuana? It usually requires some kind of formal admission in the course of court proceedings or the immigration application process.
If, for example, you tell the doctor at your visa or adjustment of status medical exam that you've used marijuana, you might have admitted to a federal offense. If you tell the immigration officer at your interview that you used marijuana in a legal state or were prescribed a medical marijuana card, you might have admitted to a federal offense. If you work in the legal marijuana industry, this could lead to problems as well.
Often a conviction from a prior criminal case can count as an admission of an offense. Sometimes even entering into a plea bargain can count as an admission. A conviction for possessing drug paraphernalia (or an admission) could also be problematic. Needless to say, this is a complicated area of law. If you have had any prior legal issues relating to marijuana or other drugs, or if you are concerned about what to say if you are asked about drug use while in a state where it was legal, you should get the advice of an attorney.
If you admit to possessing less than 30 grams of marijuana, and admit to doing it only once, you can apply for a waiver of inadmissibility under Section 212(h) of the Immigration and Nationality Act in one of two circumstances:
Whether you will be granted this waiver is totally up to the U.S. government.
To read more about waivers of inadmissibility, see Which Crimes Can Be Waived to Get a U.S. Visa or Green Card?
Definitely get an attorney's help if you believe marijuana use could come up in your application for U.S. immigration benefits. The potential for making mistakes is high in this process, so it is wise to have an experienced professional by your side.
]]>During an interview, however, applicants frequently mix things up, leave things out, or get confused. Sometimes they tell an immigration officer something that is not true. For example, maybe the applicant put one date on a form but stated another date during the interview. That could be a simple mistake. Maybe the applicant was embarrassed about something, like a past crime or marriage. Maybe the applicant didn’t understand the interpreter. However, sometimes the applicant is deliberately intending to deceive the officer.
While simple mistakes and misunderstandings will not normally cause issues with an immigration application, deliberately lying to a U.S. immigration officer can have serious consequences. What that means and how much being caught in a lie can affect your immigration prospects will depend on your current immigration status, where the lie happened, and why you lied. Here, we'll discuss:
Because immigration officers make decisions to grant or deny visas and green cards based on what a person says, and the documents submitted during their application, there are strict penalties for people who lie to get an immigration benefit. Any applicant found to have used fraud or willful misrepresentation will be permanently inadmissible from the United States. (See 8 U.S.C. § 1182.)
An officer must determine that your actions fit the legal definition in order to find that you are inadmissible for fraud or willful misrepresentation. There is a small difference between fraud and willful misrepresentation, but the two start with the same elements. You must have been trying to get an immigration benefit or have received the benefit. During the process, you must have told a lie or intended to tell the lie, that lie must have been "material," and you must have told it to an immigration officer or official. That is enough for misrepresentation.
Fraud means that you also intended to deceive the immigration officer or official and that the officer or official acted on the false statement to grant the visa or green card.
A person who is inadmissible for fraud or misrepresentation will not be allowed to receive a visa or green card unless they qualify for a waiver. Or, if and when the fraud is found out later, after the person has a green card or visa, then the person is also deportable from the United States for having been inadmissible at the time of admission.
The good news is that a simple misstatement or mistake will not make an applicant inadmissible. For both fraud and misrepresentation, you must have intentionally lied, meaning that you knew that your statement was not true and made it to the officer anyway. If you didn’t know that the statement was false, or if you thought it was true, then it is not fraud or willful misrepresentation.
You must have also told a lie about something material to the application. This means that if you lied about a small fact that didn’t matter it is not fraud or willful misrepresentation. You also must have told it to an immigration officer. This means that statements you put on a form cannot, by themselves, make you inadmissible for fraud or willful misrepresentation.
The consequences of lying to a U.S. immigration officer during the process of being formally admitted to the U.S. or while getting your green card can be harsh, but you might qualify for a waiver in certain situations.
A waiver of inadmissibility because of fraud is available in only two instances.
First, a person can apply for a waiver as the spouse or child of a U.S. citizen or permanent resident, showing that their inadmissibility would cause extreme hardship to the U.S. citizen. This is done on Form I-601, and is similar to the standard used for the waiver of the three or ten-year bar for unlawful U.S. presence.
When someone applying for a K-1 fiancé visa is inadmissible because of fraud or misrepresentation, the applicant may also apply for a waiver, as if the applicant were already the spouse of a U.S. citizen. This is because U.S. Citizenship and Immigration Services (USCIS) treats fiancé visa applicants as future spouses, and any grant of a waiver is valid only if the fiancé does marry the U.S. citizen or permanent resident spouse.
A waiver might also be available in cases where an applicant has a U.S. citizen parent, spouse, or child if the applicant can show extreme hardship and is a self-petitioner under the Violence Against Women Act (VAWA).
An applicant for U.S. citizenship appears before an immigration officer to review the N-400 application and for an interview and set of exams. At the interview, the officer puts the applicant under oath.
Any lie under oath bars an applicant from showing good moral character, which is a prerequisite to qualifying for U.S. citizenship. An applicant for naturalization must show good moral character going back at least five years (in most cases). But this is tricky, because the offense is the false testimony to USCIS itself. So, false testimony at the naturalization interview will bar the applicant from applying for citizenship for the next five years.
False testimony in another situation will have the same effect, as long as the applicant was under oath. For example, a person could have lied to an immigration judge in removal proceedings or to the immigration officer during a green card interview. (Statements made on immigration applications don’t count as statements under oath.)
An important thing to note is that there is no materiality requirement for false statements made under oath. This means that the statement doesn’t have to relate to naturalization or the immigration benefit that being sought. It can be about something minor, which has no effect on eligibility for the benefit being sought. Someone who lies under oath and says they never played baseball when in fact they were on their high school team could be considered to have made a false statement barring naturalization. This bar to good moral character affects you as long as you were under oath and you told the officer something you knew was false.
As you can see, lying to an immigration officer can have extreme consequences including permanent inadmissibility, deportability, and not being allowed to apply for U.S. citizenship. While you might not always want to answer a question that a U.S. immigration officer asks, it is always a bad idea to lie. Consider hiring an experienced immigration attorney if you're feeling uncertain about how the truth will affect your application.
]]>This article will discuss the challenges HIV+ foreign nationals face when seeking to enter or live in the United States, and how to potentially overcome them.
The Centers for Disease Control (CDC) instructions to its civil surgeons (who perform medical exams for would-be immigrants) could delay, if not completely derail, some HIV-positive applicants' request for a visa to the United States. Tuberculosis screening requirements require that anyone known to be HIV positive undergo not just a regular TB screening (a chest x-ray and possibly a blood test), but referral to a health department for a more sensitive test known as a sputum culture.
This is because CDC determined that even if an HIV positive person has a chest x-ray and blood test that are negative for TB, it doesn't rule out the possibility that the person has TB. Therefore, regardless of these preliminary test results, if the physician knows the applicant is HIV positive, the physician must order a sputum culture. Unfortunately, these cultures take at least eight weeks to grow, and the results must then be analyzed and reported back to the examining physician.
The concern, obviously, is that applicants with compromised immune systems might be more likely to catch and carry tuberculosis and bring it to the U.S.; tuberculosis being a ground of inadmissibility, meaning that the person may not receive a U.S. visa or green card even if otherwise qualified for it.
Even though the medical exam form no longer specifically asks about applicants' HIV status, and HIV testing is no longer required, the CDC instructs panel physicians to assess each applicant’s medical history by asking questions about prior illnesses and hospitalizations.
This can inevitably lead to a discussion regarding the applicant’s HIV status. Additionally, if the physician suspects an applicant is HIV positive based on symptoms, the physician can recommend that the applicant undergo HIV testing, though the testing is not mandatory. Still, HIV positive individuals are subject to the more extensive TB screening if the physician knows the applicant is HIV positive, whether this is discovered through the applicant’s voluntary disclosure or voluntary submission to testing.
This CDC policy has reportedly resulted in long delays, even when the applicant is ultimately found to be free of TB.
If the person has TB, the visa or green card may be denied, though a waiver is available. See Waivers of Health-Based Inadmissibility for U.S. Green Card Applicants for more about the criteria for receiving this waiver and the application process for requesting it.
Another issues is that, if the physician preparing the immigration-related report knows that an applicant is HIV positive, or the applicant exhibits symptoms of HIV which need ongoing medical attention, the physician will report the finding as a “Class B” medical condition.
A Class B condition does not automatically result in visa ineligibility, but the consular officer is still permitted to consider whether the condition will affect the applicant’s ability to work or whether an applicant is likely to need long-term residential care, like in a nursing home.
If so, the applicant might be asked to provide proof that the applicant will have health insurance in the United States or that the applicant or applicant’s family can cover the costs of future medical expenses. This policy applies to all medical conditions, not just HIV.
For personalized assistance with applying for a U.S. visa or lawful permanent residence, consult an experienced attorney. The attorney can help prepare the paperwork, create a convincing argument for a waiver of inadmissibility if needed, and monitor the case through any delays or difficulties.
]]>To enter the United States or to get a green card, you must be “admissible.” U.S. immigration laws includes a long list of reasons that make people “inadmissible.” The list does not include tattoos directly.
But tattoos can be viewed as evidence of other activities that would make a person inadmissible. If you look, for example, at Section 212, subsection (a)(3)(A) of the Immigration and Nationality Act (I.N.A.), you'll see that this law makes people inadmissible if U.S. immigration authorities have a “reason to believe” that they are coming to the United States to engage in “unlawful activity.”
Immigration officials have long interpreted “unlawful activity” to include membership in organized crime, like the Mafia or a gang. This is where tattoos come in. U.S. immigration authorities can, and sometimes do, use tattoos as evidence of gang membership. This then gives them “reason to believe” that someone is coming to the United States to engage in “unlawful activity” and deny the visa or green card.
Many tattoos are completely innocent, and U.S. immigration officials know this. If your tattoo is easy to understand and clearly not a gang sign, then you should not have troubles. Be ready to explain when you got inked with this particular art and what it means to you.
If your tattoo is a name or an important date, try to find a document that explains it. For example, if you have a tattoo of your daughter’s name and birthday, get a copy of your daughter’s birth certificate. Or if you have a clown face to honor a family member who was in the circus, bring proof of that (since clown faces are a common gang symbol).
If you are concerned about your tattoo, you will need to do some research about gang tattoos. Make sure that your tattoo does not suggest gang membership.
For example, the number “13” is probably the worst tattoo to have, since it could suggest that you are a member of the notorious “MS-13” gang or represent the letter “M” as used by many Mexican gangs (‘M’ is the thirteenth letter of the alphabet).
Other problematic symbols include letters associated with gangs such as ‘EME’ (the Mexican mafia), ‘ALKN’ (the Almighty Latin Kings Nation); numbers 13, 14, 18, 88; three dots in a triangle formation (especially near the eyes or on the hand); a clown face or mask; a tear drop; a three-leaf shamrock with a ‘6’ on each leaf; a crown (especially a 5-pointed crown); and words associated with gangs (such as ‘norte’ for the Norteño gang or ‘sur’ for the Sureño gang).
For more complete lists, the best route is to explore gang tattoo databases and lists. The Canadian government offers an easy-to-use (though outdated) guide, or see the FBI's guide to Tattoos and Symbol Analysis.
To get a nonimmigrant visa (a temporary one, like a tourist visa), the U.S. government might never learn about your tattoo.
But to get an immigrant visa or a green card, virtually all applicants must visit a physician for a medical exam. During the exam, the physician can ask you to remove your clothes, and will note any tattoos that you have. The U.S. immigration physicians in Ciudad Juarez are notorious for this.
Additionally, while physicians in the United States are bound by the privacy rules found in federal law (HIPAA), doctors outside of the United States are not. Local laws may limit what the physicians can and cannot say to U.S. immigration authorities, but it’s always safest to assume that the physician will tell the immigration authorities everything.
Removing or covering up an old tattoo might seem like a good idea at first, but also carries risks. During the medical exam, some doctors have been known to use a black light to detect any tattoos that have been removed. This will inevitably lead to questions about why you had the tattoo and what it was.
A cover-up might seem like a better way to go, but even then, using the black light and based on a close inspection, the doctor might be able to tell that you have gotten your tattoo covered up.
In short, removing or covering up a tattoo might not solve your problem. And if your tattoo is completely innocent, it might make things worse by giving the doctor a reason to suspect that your original tattoo was gang-related.
If you are concerned about your tattoo, consider asking a professor or researcher who specializes in gang tattoos. An experienced immigration attorney might also be able to advise you, based on their experience, as to whether your particular tattoo is likely to pose an issue at the consular post where your application will be adjudicated.
You might consider asking an expert to evaluate your tattoo to see whether it gives the impression of being gang-related. Of course, if the expert says your tattoo is gang-related, then you have to make a difficult choice of whether to go forward with your U.S. immigration application. If the expert says that your tattoo is not gang-related, that will give you some peace of mind. Note, however, that the U.S. government is always free to disagree or disregard the expert opinion.
]]>What about when an applicant has a police record including household abuse or violence? Although domestic violence isn't actually named in the law as a crime that can make a person inadmissible, it can still result in inadmissibility. This article will explain why, specifically covering:
The most common way in which a domestic violence conviction could make a noncitizen inadmissible to the United States and therefore not able to obtain a U.S. visa or green card is if it matches what’s known in the immigration world as a “crime involving moral turpitude”(CIMT).
The basic definition of a crime of moral turpitude is one that shocks the conscience or is deemed “inherently base, vile or depraved.” For more on this, see What’s a Crime of Moral Turpitude According to U.S. Immigration Law? and I.N.A. § 212(a)(2)(A)(i)(I).
The decision of whether a particular person’s conviction for domestic violence is a CIMT is made by either an immigration judge or U.S. government official, depending on where the person is in the process of applying for an immigration benefit or fighting deportation. Even if the immigration judge or official determines a particular domestic violence crime to be a CIMT, however, the analysis isn’t over. There might still be an exception it arguably falls under.
Most notably, a domestic violence crime could fall under what's sometimes called the "petty offense" exception if the maximum jail time the person could have been sentenced to was one year or less and the person was not sentenced to more than six months of imprisonment. If the crime qualifies for this exception, then the applicant would still be eligible to receive the visa or green card if there were no other immigration issues (criminal or otherwise) on their record.
Applicants for U.S. visas or green cards face potentially harsher consequences after a domestic violence conviction if the crime matches what’s known in immigration law lingo as an “aggravated felony.” This would put the person at risk for mandatory detention, deportation, ineligibility for relief from deportation, and even a permanent bar to reentering the United States.
A domestic violence conviction may be viewed as an aggravated felony if it is considered to be a “crime of violence” (defined at 18 U.S.C. §16). If the crime on record was intentional, included force, and the order for imprisonment was for more than one year, the crime is likely to be considered a crime of violence and thus an aggravated felony under U.S. immigration law.
The record of conviction (including the written law for the crime, the charging documents, plea agreement and transcript, sentence, and jury instructions) will determine whether the domestic violence crime is a crime of violence and an aggravated felony.
It is VERY important to understand that police reports (the document made by police detailing the crime or incident) are not included in the record of conviction unless a person agrees that the facts in the report are true. So if a non-citizen already has a conviction for domestic violence, it is in their best interest to keep the police report out of consideration for the issue of an aggravated felony. That’s because the report might include comments that the noncitizen (or other person involved) made to the police that could elevate the crime to the level of a crime of violence or aggravated felony.
If you already have a domestic violence crime on your record, speak with an experienced immigration attorney for a full analysis of whether it makes you inadmissible.
If you have been charged with domestic violence, but haven’t yet received a final conviction, it’s also worth bringing in an immigration attorney to confer with your criminal law attorney. You might be able to plead down to a lesser crime, but the exact definition of that crime will be important, in order to avoid the possibility of deportation and exile from the United States. Specifically with domestic violence, your best bet will likely be to plead to something that does not include a sentence of more than 364 days, such as simple battery or assault.
]]>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.
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