In certain circumstances, a person will not be allowed to enter or remain in the U.S. or receive a U.S. visa or green card even if otherwise eligible for it. These circumstances are known as “grounds of inadmissibility” and are listed in the Immigration and Nationality Act at § 212(a) (8 U.S.C. § 1182(a)). See also Inadmissibility: When the U.S. Can Keep You Out.
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 to be minor enough to punish with less than a year of potential jail time—could possibly make a person inadmissible. Regardless of whether the person actually serves jail time, a record of misdemeanors could disqualify him or her from receiving a U.S. visa or green card.
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—with regard to misdemeanors, most likely either a “crime involving moral turpitude” or a drug crime.
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 that involves an element of fraud, violence, or moral depravity or an attempt to commit such a crime.
Drug crimes create a similar problem for applicants convicted of a misdemeanor. A conviction for drug possession, no matter how small the quantity of drugs, will almost always be a ground of inadmissibility. A number of other drug-related misdemeanors might lead to a finding that the applicant is a drug abuser or addict or a drug trafficker; both of which are grounds of inadmissibility.
In deciding whether a misdemeanor makes an applicant 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 immigration law regarding inadmissibility to determine whether it’s serious enough to be a CIMT or matches a drug-related ground of inadmissibility.
But certain patterns have emerged with regard to misdemeanors that are commonly found to match grounds of inadmissibility, as described further below.
To further complicate the analysis, someone who was never actually convicted of a misdemeanor or other crime 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. Also, if a person has been charged with a crime, but the case has not been resolved, it is unlikely the person 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 person has ever participated in drug trafficking, or an immigration official has other information available to them indicating that a person 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.
Below are some crimes that, although they’re normally prosecuted as misdemeanors, are also commonly considered to match the grounds of inadmissibility under U.S. immigration law:
Additionally, there are some 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 a nonimmigrant visa 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.
Despite having been convicted of a crime involving moral turpitude, some people can avoid inadmissibility by means of either the petty offense exception or the youthful offender 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. For more on the petty offense exception see When the Petty Offense Exception Excuses a Crime of Moral Turpitude.
For example, solicitation of prostitution 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.
It is important to remember that the petty offense exception only covers ONE offense and applies only to crimes of moral turpitude (not to drug offenses).
The youthful offender exception shields some people who were under 18 years old when they committed the offense, unless the person was 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 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.
Overall, 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.
If you have committed a crime (even only a misdemeanor and even if you were not formally convicted) and are (or plan 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.