Crimes That Make U.S. Visa or Green Card Applicants Inadmissible (Ineligible for a Visa or Green Card)

Any criminal history can present a major problem for immigrants of all sorts, as do security violations.

By , J.D. · University of Washington School of Law

If you are applying for a U.S. nonimmigrant 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; 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.

Don't Confuse Inadmissibility With Deportability

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.

Which Crimes Are on the Statutory List of Inadmissibility Grounds

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.

  • Conviction of a crime involving moral turpitude (but not a purely political offense). This includes any attempt or conspiracy to commit such a crime. It excludes crimes committed when the person was under the age of 18 years, so long as the person was released from jail more than five years before applying for a visa or other immigration benefit. It also excludes crimes for which the maximum penalty did not exceed one year in prison and the person was not, in fact, sentenced to more than six months in prison.
  • Conviction or admission of a controlled substance violation, whether under U.S. or foreign law. This includes any conspiracy to commit such a crime.
  • Convictions for two or more crimes (other than purely political ones) for which the prison sentences totaled at least five years. This multiple-offense ground of inadmissibility applies whether or not the convictions came from a single trial and whether or not the offenses arose from a single scheme of misconduct or involved moral turpitude.
  • Conviction of or participation in (according to the reasonable belief of the U.S. government) controlled substance trafficking. This includes anyone who knowingly aided, abetted, assisted, conspired, or colluded in illicit drug trafficking. It also includes the spouse, son, or daughter of the inadmissible applicant if that person has, within the last five years, received any financial or other benefit from the illicit activities, and knew or reasonably should have known where the money or benefit came from.
  • Having the purpose of engaging in prostitution or commercialized vice upon coming to the United States, or a history, within the previous ten years, of having engaged in prostitution.
  • Procurement or attempted procurement or importation of prostitutes, directly or indirectly, or receipt of proceeds of prostitution, any of which occurred within the previous ten years.
  • Assertion of immunity from prosecution after committing a serious criminal offense in the U.S., if the person was thus able to depart the U.S. and has not since submitted fully to the jurisdiction of the relevant U.S. court .
  • Commission of particularly severe violations of religious freedom while serving as a foreign government official.
  • Commission of or conspiracy to commit human trafficking offenses, within or outside the U.S., or being a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker according to the knowledge or reasonable belief of the U.S. government. Also inadmissible are the spouse, son, or daughter the applicant if they, within the previous five years (but when older than children), received financial or other benefits from the illicit activity and knew or reasonably should have known that the money or other benefit came from the illicit activity.
  • Conviction of an aggravated felony, if the person was removed from the U.S. and seeks to return (this ground of inadmissibility lasts for 20 years)
  • Seeking to enter the U.S. to engage in money laundering, or a history of having laundered money, or having been (according to the knowledge of the U.S. government) a knowing aider, abettor, assister, conspirator, or colluder with money launderers.

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.

How Might Various Small Crimes Add Up to "Multiple Convictions"?

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.

Will Possession of a Small Amount of Marijuana Count Towards My Number of Criminal 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.

Will a Simple Possession of Drug Paraphernalia Count Towards My 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.

How Do Crimes Involving Moral Turpitude Affect Multiple 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.

Will Alternative Sentencing Programs or Procedures or Post-Conviction Relief Get Rid of a Criminal Conviction?

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).)

How Are Immigrants' Crimes Discovered Within the Visa or Green Card Application Process?

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.

How Being a Terrorist, Spy, or for Other Security Risk Causes Inadmissibility

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.

Inadmissibility Based on Association With Espionage or Sabotage

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).

Inadmissibility Based on Association With Terrorism

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:

  • has engaged in or appear likely to engage in a terrorist activity after U.S. entry, according to the knowledge or reasonable belief of the U.S. government
  • has incited terrorist activity meant to cause death or serious bodily harm
  • represents a terrorist organization or a political, social, or other group that endorses or espouses terrorism
  • is a member of a terrorist organization (unless the person can prove that he or she didn't know and should not have reasonably known that it was a terrorist organization)
  • endorses or espouses terrorist activity or persuades other people to do so
  • supports a terrorist organization
  • has received military-type training from or on behalf of any terrorist organization, or is the spouse or child of someone who is inadmissible under this portion of the law, if the activity causing the main applicant to be inadmissible took place within the past five years. There's an exception for a spouse or child who did not know or should not reasonably have known of the terrorist activity or whom the U.S. government reasonably believes has renounced terrorist activity.

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.

Inadmissibility for Foreign Policy Reasons

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.

Inadmissibility Based on Membership in a Totalitarian Party

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.

Inadmissibility Based on Participation in Nazi Persecution

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.

Inadmissibility Based on Commission of Torture or Extrajudicial Killings

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.

Inadmissibility Based on Recruitment or Use of Child Soldiers

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.

When Foreign Crimes Can Be Waived for Nonimmigrant Visa Applicants

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.

When Foreign Crimes Can Be Waived for Immigrant Visa Applicants

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.

Expungements of One's Criminal Record Might Not Help

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.

For More Information and Assistance

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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