The process to obtain a visa for visiting or living in the United States is difficult for everyone, but can be even more confusing if you have a criminal record in another country. Still, a criminal record might not prevent you from receiving a U.S. visa or green card.
First, you’ll want to get a better sense of whether your foreign criminal conviction will result in visa ineligibility. This varies from country to country and is discussed in, Will a Foreign Criminal Conviction Mean My U.S. Visa Will Be Denied?.
Even with a criminal ineligibility, you might nevertheless be able to receive a U.S. visa if you qualify for a waiver. The process and criteria for waivers is different for nonimmigrant visas and immigrant visas.
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 of the U.S. 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. 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 ten 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, however. Also, the nonimmigrant visa you receive based on that waiver might be valid for only one trip.
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. This form and instructions can be found on the USCIS website.
Immigrant visa waivers must meet strict criteria or DHS will not approve them. If the consular officer told you that you need a waiver of ineligibility, you’d be wise to seek the assistance of a U.S.-based immigration attorney.
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.
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.
If you have doubts as to whether a crime that no longer appears on your record will result in a visa ineligibility or you are hoping to obtain an expungement to improve your chances of receiving a U.S. visa, a U.S. immigration attorney can give you guidance, but might also need to consult with a local attorney in your country in order to completely understand how local laws regarding expungement relate to U.S. immigration law.