Will a Misdemeanor Conviction Prevent You From Receiving a U.S. Visa or Green Card?

Understanding when a seemingly minor crime can disqualify someone from eligibility for a U.S. visa or green card.

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” in immigration law and are listed in the Immigration and Nationality Act at   § 212(a)  (8 U.S.C. § 1182(a)). See also Nolo’s article, “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 Nolo’s article,  “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 law views to be minor enough to punish with less than a year of potential jail time - could possibly make a person inadmissible. Even if the person doesn’t actually serve jail time, a record of misdemeanors could disqualify him or her from receiving a U.S. visa or green card.

Why a Record of Misdemeanors May Lead to Inadmissibility

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 of 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 a crime that’s inherently base, vile, depraved, or contrary to societal norms. For more on the legal definition of crimes of moral turpitude, see Nolo’s article  “What’s a Crime of Moral Turpitude According to U.S. Immigration Law.”

Drug crimes create a similar problem for applicants convicted of a misdemeanor. A number of drug-related misdemeanors 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, therefore, the U.S. official reviewing the case will have to look carefully at the definition of the crime and the section of immigration law regarding inadmissibility to determine whether it’s “vile” enough to be a CMT or matches a drug-related ground of inadmissibility. But certain patterns have emerged with regard to misdemeanors that are commonly found to be grounds of inadmissibility, as described in the next section.

To further complicate the analysis, someone who was never actually convicted of a misdemeanor or other crime can be found inadmissible. All it takes is for the person to formally admit the elements of a crime of moral turpitude or inadmissible drug conduct to a government official. And mere suspicion is enough in the case of a drug crime: If a violation 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, then that person would be ineligible for a visa or green card (with no waiver available).

Types of Misdemeanors That Commonly Make a Person Inadmissible

Below are some crimes that, though they’re normally prosecuted as misdemeanors, are also commonly considered to match the grounds of inadmissibility under U.S. immigration law:

  • Shoplifting (though this might qualify for the petty offense exception, described below)
  • Petty theft (would likely qualify for the petty offense exception)
  • Misdemeanor burglary (would likely qualify for the petty offense exception)
  • Simple assault (would likely qualify for the petty offense exception)
  • Misdemeanor domestic violence (would likely qualify for the petty offense exception)
  • Misdemeanor battery (would likely qualify for the petty offense exception)
  • Harassment (would likely qualify for the petty offense exception)
  • Possession of 30 grams or less of marijuana (waiver possibly available, as described below)
  • Solicitation of the sale of drugs (only in a few states is a waiver available)
  • Sale or possession for sale of drugs (no waiver available)
  • Other violations  “relating to”  a federally defined controlled substance (no waiver available)
  • Other violations that give immigration officials  “reason to believe”  person is a drug trafficker (no waiver available).

Avoiding Inadmissibility Using Petty Offense or Youthful Offender Exceptions

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 Nolo’s article, “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 and who fit other criteria. For more, see Nolo’s article, “Crimes Involving Moral Turpitude: The Youthful Offender Exception.”

Avoiding Inadmissibility by Applying for a Waiver

Depending on your particular situation (how long ago the crime occurred or whether you have qualifying relatives), you may be eligible to file what’s known as a waiver in order to cure your ground of inadmissibility. For more information on waivers of inadmissibility, see Nolo’s legal topic page,  “Waivers of Inadmissibility: Who Is Eligible and How to Apply.”

Overall, even misdemeanors may lead to serious immigration consequences and could bar one’s eligibility for a visa or green card. Though a crime may 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.

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