When the Petty Offense Exception Excuses a Crime of Moral Turpitude

An immigrant who has committed what's called a "crime involving moral turpitude" (CIMT or CMT) can be deported from or denied entry into the United States. Not every crime is considered morally wrong, however. For details on this, see What's a Crime of Moral Turpitude According to U.S. Immigration Law? Also, even if you have committed a CIMT and are thus "inadmissible," you might still be eligible for a visa or green card if it qualifies as a "petty offense." We'll discuss how this works below.

(For the law on this matter, see § 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act or I.N.A.; or 8 U.S.C. §1182(a)(2)(A)(ii)(II).)

Determining Whether Your Crime Was a "Petty Offense"

A crime involving moral turpitude is considered a "petty offense" if:

• the maximum penalty that you could have received for committing the offense is exactly one year or less, AND
• you personally were sentenced to no more than six months imprisonment, regardless of the amount of time you actually served.

Don't make the mistake that some people do and assume that a misdemeanor will likely qualify as a petty offense but a felony will not. No matter how the crime is named and classified, you have to use the two-part test described above. Some felonies might actually fit within the petty offense exception, while many misdemeanors will not.

State laws vary as to how they name and assign maximum sentences to crimes, so whether your offense qualifies as "petty" will depend very much on state law.

How to Show That the Petty Offense Exception Applies

In order to show that your offense was a petty one, you will need to provide the U.S. government official who is ruling on your immigration application with:

• a certified disposition from the court that convicted you, and
• a copy of the statute under which you were convicted, including the maximum possible sentence.

Procedures for obtaining a certified record of your conviction vary from court to court. You or your attorney should be able to get the records you need by contacting the clerk of the court in which you were convicted.

You should also provide the language of the statute under which you were convicted. You can find most statutes on state websites or at the public library. Many state and municipal statutes have separate criminal and sentencing provisions, and you will need to make sure to include both so that you can prove that the maximum sentence fits within the exception.

Situations Where the Petty Offense Exception Won't Help

The petty offense exception works only to excuse crimes involving moral turpitude. Many offenses, including controlled substance violations, cannot be excused by the petty offense exception.

It is also important to understand that the petty offense exception can apply to only one offense. If you have committed two or more crimes involving moral turpitude, you will not be able to benefit from the petty offense exception regardless of the maximum sentence and amount of time you served.

The rules are a bit different if you are applying for cancellation of removal for nonpermanent residents (described in Green Card Through Cancellation of Removal (Non-LPR): Who Qualifies?) or if you are defending against having your green card revoked.

This is because the criminal grounds of deportability (detailed in Section 237(a)(2) of the I.N.A.) apply in such cases, while they do not apply to most people seeking visas. Due to slightly different wording in this section of the statute, you might still be deportable unless the maximum possible penalty for your offense was less than one year's imprisonment, rather than one year or under.

Thus a person convicted of a second degree misdemeanor with a maximum sentence of one year would be ineligible for cancellation of removal, even though he or she could still benefit from the petty offense exception when applying for a visa or naturalization.

Seeking a Petty Offense Exception

The petty offense exception provides a way for immigrants convicted of certain crimes involving moral turpitude to remain eligible for admission to the United States. A particular advantage is that if you can show that your crime was a petty offense, you will not need to seek a waiver—that is, request special legal forgiveness—for that offense in order to proceed with an application for U.S. immigration benefits.

Like all criminal issues in immigration law, however, the petty offense exception is complicated and its application depends on your crime, the eligibility requirements for the immigration benefit you are seeking, and other details of your case. It is best to see an experienced immigration attorney to help you determine how to proceed.