Crimes That Are Absolute Bars to a Green Card (No Waiver)
A record of murder, torture, or drug crimes are in almost all cases absolute bars to receiving U.S. lawful permanent residence.
The commission of a criminal offense is a potential bar to receiving a green card (or U.S. lawful permanent residence), based on a legal concept known as “inadmissibility.” But not every crime has this effect.
In some instances, the criminal offense is so minor that it will not have any impact on a person receiving a green card at all. Other types of offenses may, though more serious, be overcome by the green card applicant seeking a waiver (legal forgiveness) in conjunction with the application for U.S. lawful residence.
However, there are some categories of offenses that are absolute bars to receiving a green card, with no waiver available. If you have committed one of these offenses you have basically no chance of getting a green card. This article will review those types of crimes with respect to most applicants. (A separate standard applies to asylee/refugee applicants for a U.S. green card.)
How the U.S. Government Finds Out What’s on Someone’s Criminal Record
The U.S. government has various ways of determining whether a green card applicant has a criminal record, depending in part on whether the person is applying from within the U.S. (“adjustment of status”) or overseas (“consular processing”).
If you’ll be in the U.S. and adjusting status, you will need to go to a biometrics appointment. During this appointment you will have your fingerprints taken, and the results will reveal your arrest history (if any) and the final disposition of any criminal case on your record.
If you are applying for an immigrant visa and green card from outside of the U.S., you may, depending on your country of residence, be required to obtain a police certificate detailing any criminal history in that country.
The U.S. government can also learn about an applicant’s criminal record through the person’s own statements and admissions in the course of the application process. You will be asked to list any arrests and/or convictions that you may have had on the relevant application forms, and may also be asked about events in your life during personal interviews with U.S. government officials.
Both U.S. and foreign convictions count equally when assessing whether you are admissible.
In some situations, local or state authorities in the U.S. will contact the federal government when they have arrested someone who they suspect is a non-U.S. citizen. If the person is applying for a green card, he or she may be able to continue (or start) the application in removal proceedings (if placed in such proceedings), but the criminal record will obviously be taken into account.
A Record of Murder or Torture Ruins One’s Chances for a Green Card
The commission of murder (in the U.S. or abroad) makes a person ineligible to receive a green card. The commission of a criminal act involving torture is also an absolute bar to receiving a green card.
Attempting or conspiring to commit one of these offenses also carries with it the same absolute bar to receiving a green card.
An actual conviction (for example, a court judgment or a guilty plea) for one of these crimes is not required for the absolute bar to take effect. Simply admitting to having done the acts that constitute one of these offenses has the same immigration law consequences as a conviction.
So, for instance, if during an interview for a green card, an applicant admits that he or she tortured someone during a military conflict in the applicant’s native country, this person would be barred from receiving a green card.
Drug Involvement Will Almost Certainly Bar You From Getting a Green Card
Traffickers in illicit drugs are barred from receiving a U.S. green card. In addition to convictions for crimes involving drug trafficking (which can include distribution offenses), the bar also applies to anyone who has knowingly aided, abetted, assisted, conspired, or colluded with drug traffickers.
Most possession of controlled substances convictions will also present an absolute bar to receiving a green card. A full list of applicable controlled substances is provided by Section 102 of the Federal Controlled Substances Act. (See 21 U.S.C. § 802.)
One notable exception to the absolute bar for controlled substances possession is for a single offense of simple possession of 30 grams or less of marijuana (which includes convictions involving drug paraphernalia). A waiver may be available if you meet this single offense exception. (See Nolo’s article on “Filing Process for the I-601 Waiver,” for more information regarding how to file such a waiver.)
Aggravated Felonies May Not Be an Absolute Bar to a Green Card
Various categories of serious criminal offenses are labeled in the Immigration and Nationality Act (at I.N.A. § 101(a)(43)) as “aggravated felony” offenses. Such offenses are treated quite seriously, and may lead to inadmissibility.
However, the mere fact that you have been convicted of an aggravated felony does not automatically mean that you are inadmissible and barred from receiving a green card. Many aggravated felony offenses are also categorized as crimes involving moral turpitude. This is particularly relevant because under I.N.A. § 212(h), crimes involving moral turpitude are specifically listed as ones that can be waived.
If you have a violent or dangerous crime on your record it will be very difficult to have a waiver approved on your behalf. In these types of situations you will need to demonstrate some extraordinary circumstances and an extreme level of hardship in order for the waiver to be approved.
If you have committed a criminal offense and are interested in applying for a green card you should contact an immigration attorney to discuss your eligibility.