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

In certain circumstances, a foreign-born person will not be allowed to enter or remain in the United States or receive a U.S. visa or green card even if they meet the basic eligibility criteria. 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)). Various crimes are included as grounds of inadmissibility, which creates major problems for people who want a visa or green card but who've had run-ins with police. (These are further enumerated in Crimes That Make U.S. Visa or Green Card Applicants Inadmissible; See also, Inadmissibility: When the U.S. Can Keep You Out.)

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 as minor enough to punish with less than a year of potential jail time—could possibly make a foreign-born person 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 federal immigration law regarding inadmissibility to determine whether it's serious enough to bar entry. Here, we'll discuss:

• which types of misdemeanors tend to be a problem
• exceptions for petty offenses or crimes committed while underage, and
• when applying for a waiver can help gain approval of the immigration benefit in question.

Why a Record of Misdemeanors Can Lead to Inadmissibility to the United States

If only checking on a prospective immigrant'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 originally used to prosecute the person, and such laws vary from state to state.

With regard to misdemeanors, the most likely problems arise because the offense matches either the description of a "crime involving moral turpitude" or a drug crime, along with various others.

Misdemeanors Can Be Crimes of Moral Turpitude, Which Are Grounds of Inadmissibility

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 involving an element of fraud, violence, or moral depravity, or an attempt to commit such a crime. (See What's a Crime of Moral Turpitude According to U.S. Immigration Law?.)

Below are crimes that, although they're normally prosecuted as misdemeanors, are also commonly considered to match the CIMT ground 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)
• misdemeanor assault or battery (depending on how the law in a state or country is worded and would likely qualify for petty offense exception), and
• misdemeanor domestic violence (depending on how the law in a state or country is worded, and likely to qualify for petty offense exception).

Additionally, there are 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 one 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.

Misdemeanor Drug Crimes Are Grounds of Inadmissibility

A misdemeanor conviction for drug possession, no matter how small the quantity of drugs, will almost always be a ground of inadmissibility, such as:

• 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 for green card)
• sale or possession for sale of drugs (no waiver available for green card)
• other violations "relating to" a federally defined controlled substance (no waiver available for green cards), or
• other violations that give immigration officials "reason to believe" a person is a drug trafficker (no waiver available for green card).

A number of other drug-related misdemeanors might also lead to a finding that the applicant is a drug abuser or addict or a drug trafficker; both of which are grounds of inadmissibility.

When Misdemeanors Without Actual Criminal Convictions Can Make Someone Inadmissible

To further complicate the analysis, a foreign-born person who was never actually convicted of a misdemeanor or other crime they committed 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. And if a person has been charged with a crime, but the case has not been resolved, it is unlikely they 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 applicant has ever participated in drug trafficking, or an immigration official has other information available to them indicating that the applicant is or was involved in drug trafficking, then that person (and any spouse and children) would be ineligible for a visa or green card. In such a case, no waiver is available for a green card.

Avoiding Inadmissibility Using Petty Offense Exception

Despite having been convicted of a crime involving moral turpitude, some people can avoid inadmissibility by means of the petty offense 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. The petty offense exception covers only ONE offense and applies only to crimes of moral turpitude (not to drug offenses). For more on this, see When the Petty Offense Exception Excuses a Crime of Moral Turpitude.

For example, solicitation of prostitutes 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.

Avoiding Inadmissibility Using Youthful Offender Exception

The youthful offender exception shields some people who were under 18 years old when they committed a criminal offense that's a CIMT, unless they were 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.

Avoiding Inadmissibility by Applying for a Waiver

Depending on your particular situation (how long ago the crime occurred, the seriousness of the crime, and whether you have qualifying U.S. 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.

Getting Legal Help

As you've seen, even misdemeanors can lead to serious immigration consequences and 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. Therefore, if you have committed a crime (even only a misdemeanor and even if you were not formally convicted) and you are planning 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.