A criminal conviction can present a major problem for a foreign-born person who is in the United States, whether on a visa, as a green card holder, or while waiting for an immigration benefit like adjustment of status. If you have been convicted of a crime, whether it was committed in the U.S. or another country, you'll need to figure out what that means for you and your immigration status.
Analyzing this can be difficult, and there are times when you will need to seek professional help. A crime can cause serious issues, including making you deportable or inadmissible or preventing you from applying for U.S. citizenship. Knowing how to do some of the research yourself, however, can help you figure out whether you will have issues and whether you should try to consult with an attorney.
First, you'll need to understand the risks you face, in immigration law terms. Step one in your actual research is to look at the applicable federal law, namely the relevant sections of the Immigration and Nationality Act (I.N.A.), as referenced below. This is the ultimate authority that the government must apply.
Next, you will probably want to look at secondary sources of information—USCIS guidance, instructions for USCIS forms, and Nolo articles—to help you interpret the statutes and answer your questions.
As mentioned, your own immigration status plays a role in determining what area of the law you must research. There's no one list of crimes that are problematic for immigration purposes. Instead, you might need to look at one or two among the three different portions of federal law that might apply: the grounds of inadmissibility (meaning who can be blocked from future U.S. entry or immigration benefits), the grounds of deportability (meaning who can be removed from the U.S.), and the criteria for naturalized U.S. citizenship.
More specifically, here's what issues you'll need to research:
The inadmissibility statutes are found in I.N.A. Section 212. The statute lists the crimes that make a person inadmissible are at Section 212(a)(2).
Unfortunately, you'll soon see that not all of the description of crimes here are actually defined. For example, a crime involving moral turpitude (CIMT) is mentioned as a ground of inadmissibility (as well as deportability, discussed below) without further explanation. One must read more on this topic elsewhere, as CIMTs have been defined and shaped by the courts over the past 20-plus years. (See What's a Crime of Moral Turpitude According to U.S. Immigration Law?)
You have to commit only one CIMT to be found inadmissible to the United States. There's an exception if you were a juvenile or if it was a minor offense (the ‘petty offense' exception). A controlled substance offense will also make you inadmissible.
If you are living in the U.S., the main question on your mind is probably: Will my crime cause me to be deported?
If you have a green card (are a lawful permanent resident) or a valid visa (such as F-1 student or B-2 tourist), then for the answer to be "yes," you would have to be convicted of a crime that's actually on the list deportability grounds.
The applicable statutes are at I.N.A. Section 237. You'll see that the section starts with "classes of deportable aliens." If you scroll down slightly to Section 237(a)(2), it says "criminal offenses," and lists crimes that can cause someone to be deported, such as a single CIMT within five years of U.S. entry or two at any time, an aggravated felony, controlled substance offenses, and domestic violence offenses. The aggravated felony statute is found in the definitions portion of I.N.A. Section 101(a)(43) and also includes a list of crimes.
Whether having a conviction that matches something on this list will lead to deportation anytime soon is another question. The crime would have to come to the attention of U.S. immigration authorities. State legal systems often have ways of notifying federal immigration authorities when a non-citizen is arrested for or convicted of a crime. But there is no direct connection between state and federal law enforcement, so sometimes people are convicted of a crime and U.S. immigration authorities are not notified. Sometimes the immigration authorities find out about a conviction only when a person applies to renew a green card or for U.S. citizenship—both of which require applicants to be fingerprinted for a background check.
Even if the crime does come to the attention of the U.S. government, people who have committed relatively minor crimes may in some cases apply for waivers of deportation.
Still, there's no question that someone with a criminal record is at high risk of deportation from the United States. What's more, returning to the U.S. after such a deportation is difficult. For example, a person who has committed an aggravated felony and deported can never reapply for admission to the United States. See What's an Aggravated Felony According to U.S. Immigration Law?
A crime that does not cause a green card holder to be deported could nevertheless prevent the person from becoming a naturalized U.S. citizen. For example, a person who has been convicted of illegal gambling is not deportable, but cannot become a citizen, because illegal gambling shows a lack of good moral character.
Good moral character is a necessary condition to becoming a citizen, particularly during the five years before applying to naturalize. (It's less if you fall into an exception allowing you to apply for citizenship early, for example based on marriage to a U.S. citizen.)
The good moral character statute is found at I.N.A. Section 101(f) and also contains a list of offenses or crimes. You'll see that the last two items on the list say that they apply even outside of the five-year period. These are called the permanent bars to good moral character. If you have been convicted of an aggravated felony or if you participated in genocide or torture, you are permanently disqualified from applying for naturalized U.S. citizenship.
While looking at the statutes is important, it can also be confusing. They are sometimes vague and written in convoluted ways, leading to difficulty figuring out what the law means for you. The next step is to look at what the U.S. government says about your crime.
Start by looking at the USCIS Policy Manual. This is a helpful collection of USCIS policies that describe various pieces of immigration law.
Volume 12, on applying for U.S. citizenship, provides good information about the good moral character requirement. Volume 8 discusses admissibility. While it skips the criminal grounds of inadmissibility, it shows how an officer looks at inadmissibility issues during an application process and provides in-depth coverage of inadmissibility due to fraud or misrepresentation. Lastly, Volume 9 part B discusses extreme hardship, which is what someone must prove for almost every waiver of inadmissibility, whether criminal or not.
Another place to look is the State Department's Foreign Affairs Manual. It is intended to help consular officers adjudicate visa applications, so it includes good information on, for example, what crimes count as a CIMT.
Another place to look is the instructions for USCIS forms relevant to the immigration benefit you are seeking. These can be helpful in figuring out what your crime means for you.
For example, if you are worried about being inadmissible for purposes of adjusting status within the U.S., you can look at the green card application form (I-485) instructions. These say that if you are inadmissible, you might be able to apply for a waiver, and direct you to the instructions for the appropriate form to use (Form I-601 or Form I-212).
Each USCIS form's instructions section begins with a discussion of who needs to file that form, which can help determine whether you need a waiver. To find the instructions for a form, type in the website address for USCIS (www.uscis.gov), add a forward slash ("/") and then type the form name, for example: www.uscis.gov/I-485. The instructions are usually the second downloadable PDF document on the page.
Various articles on Nolo.com provide overviews of various crimes and their immigration consequences. For example, a common question is addressed in Will a Green Card Holder With a DUI Be Allowed to Reenter the U.S.?
If you think that you have committed an aggravated felony or you are worried that you are deportable or inadmissible, consulting an immigration attorney for individual advice can also be an excellent idea. U.S. immigration laws are often difficult even for professionals to decipher!