If you are applying for a U.S. visa or for lawful permanent residence (a "green card"), the government officials reviewing your application will take steps to make sure that you are not "inadmissible" to the United States. If you are inadmissible, it means that you will be denied the green card or visa unless the law provides an opportunity for you to apply for legal forgiveness, called a "waiver," and you successfully do so.
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. Still, not every crime on a person's record makes them inadmissible. This article discusses the ones that do.
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 the 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 and deportable.
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 just admitting to a crime or ground of inadmissibility 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 inadmissibilty 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.
If you have a crime 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 immigration 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.
For more information, see the Inadmissibility and Waivers section of Nolo's website.