Do You Need a Criminal Immigration Attorney?
Can you get a green card if you have a criminal record? Having a criminal record can put the brakes on your green card application. If you have a criminal conviction in your past, it’s in your best interest to talk to an criminal immigration attorney who understands inadmissibility and how having a record could impact your ability to immigrate to the U.S.
What is a Criminal Conviction?
A conviction is not the same as an arrest or being charged with a crime. Only a judge can convict someone of a crime. Typically, a criminal conviction occurs under these scenarios:
- Pleading Guilty: If you admit guilt to a charge and accept punishment, you are convicted.
- Being Found Guilty in Court: If the judge (or jury) reviews the evidence and declares you guilty, you are convicted.
Being arrested or facing charges does not automatically impact your immigration status, but a conviction might.
Can You Be Eligible for a Green Card with a Criminal Conviction?
To qualify for a green card, you must be of “good moral character.” USCIS will examine your criminal history and determine whether you lied on your application. Usually, USCIS will examine your conduct in the 5 years before your application (3 years if you’re applying as a spouse of a U.S. citizen) – but if you have a criminal record with crimes involving moral turpitude (CIMT), USCIS could deny your petition immediately.
Your criminal immigration attorney will help you determine whether your record will prevent you from successfully applying for a green card. Still, there are no guarantees in immigration – nobody can predict how U.S. Citizenship and Immigration Services will rule in most cases. The facts of your circumstances matter, and USCIS may look at things like:
- The definition of the crime you were convicted of
- Your age at the time you committed the crime
- How many convictions you have
Crimes That Make You Inadmissible to the U.S.
Some crimes do make you inadmissible from entering the U.S., such as those involving moral turpitude and controlled substances. Drug trafficking, kidnapping, prostitution, and money laundering can also make you inadmissible. However, there are always exceptions to the rules. It’s best to talk to your criminal immigration attorney about your situation before you apply for a green card.
What is Moral Turpitude?
Moral turpitude refers to “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.” These types of crimes are called crimes involving moral turpitude, or CIMTs.
Some crimes that can make you inadmissible to the U.S. include:
- Crimes against a person that involve criminal intent or recklessness, or those that are defined as morally reprehensible
- Crimes against property that involve fraud against the government or an individual
- Sexual crimes
- Crimes against authority of the government, such as bribes or counterfeiting
- Fraud or embezzlement
- Assault with intent to harm
- Theft involving dishonesty
USCIS evaluates the intent and the nature of the crime when deciding on these cases.
Can a Felon Get Citizenship Through Marriage?
If you committed a felony, applying for citizenship through marriage can be a complex case. You may file for a waiver of inadmissibility to seek “forgiveness” from the U.S. government and get a green card under certain conditions. However, it is strongly advised to seek a criminal immigration attorney to help you carefully review specific details of your case including:
- Your criminal record from your native country
- The specific crime you committed and if it falls under the category of CIMTs
- Proof of a bona fide relationship with your partner
Can I Get a Green Card If I Have a Criminal Record for an Aggravated Felony?
An aggravated felony conviction makes a person inadmissible to the United States. If you have been convicted of an aggravated felony while in the U.S. on a visa or with a green card, you will most likely be placed in removal proceedings.
Suppose an immigration judge orders you to leave the country because you were convicted of a crime like sexual abuse of a minor or theft. In that case, you will be ineligible for cancellation of removal, voluntary departure, and even some types of waivers of inadmissibility – and after you have been deported (removed from the United States), you will be permanently inadmissible.
That means you cannot legally return. If you do try to return, you could face a federal prison sentence.
Can I Get a Green Card If I Have a Criminal Record Involving Controlled Substance Violations?
Crimes involving illegal drugs, such as trafficking or possession, can make you ineligible for both a green card and certain waivers. However, exceptions may apply to a single instance of minor possession of marijuana.
Can You Get a Green Card with a Misdemeanor?
A misdemeanor is considered a less severe offense compared to a felony. However, its impact on your green card eligibility depends on the nature and circumstances of the offense. For instance:
- A simple misdemeanor (e.g., a speeding ticket) may not affect your application.
- A misdemeanor involving theft, domestic violence, or fraud, however, could lead to your application being denied by USCIS.
USCIS will carefully review the case details, including sentencing, and determine whether you meet the “good moral character” requirement.
Can You Get a Green Card with a Misdemeanor for a Minor Offense?
A minor offense like a DUI or traffic violation will not necessarily prevent you from getting a green card. However, if it’s not your first misdemeanor, or if it’s combined with other crimes – such as vehicular manslaughter or a drug charge – it may disqualify you from getting a green card. Worse, it can cause the U.S. government to revoke your visa and have you removed from the country.
What is a Waiver of Inadmissibility?
If your criminal record makes you inadmissible to the U.S., a waiver of inadmissibility may offer hope. Certain exceptions allow individuals to overcome their criminal history and proceed with the green card application. Examples include:
- Juvenile Offenses: Crimes committed under 18 where at least five years have passed since the conviction and date of release.
- Single CIMT with potential sentencing of less than a year and an actual sentence of six months or less.
Your attorney can help you apply for a waiver and present a compelling case.
What Kind of Background Check Does USCIS Do on Applicants?
USCIS performs extensive background checks on visa and green card applicants. They can gather information that includes fingerprints, photos, and a signature—known as biometrics. DHS indicates that U.S. citizen sponsors can be included in collecting biometric information. USCIS submits biometric information to the Federal Bureau of Investigation (FBI) for a complete criminal background check.
If the fingerprints provided are rejected by the FBI’s Criminal Justice Information Services (CJIS) Division because of poor image quality, USCIS may request that the FBI perform what is referred to as a “name check.” In this instance, the bureau searches its systems for an appearance of your name. USCIS also conducts additional criminal background and security checks, depending on the nature of the circumstances.
What if the Sponsor Has a Criminal Record?
When someone wants to sponsor a family member to come to the United States, there’s a lot of focus on whether the beneficiary – the person coming to the U.S. – has a criminal record but very little focus on whether the sponsor has a criminal record.
So, can a person with a criminal record sponsor someone to come to the United States?
Generally, yes. Only convictions for some offenses against minors (people under 18 years old) will automatically disqualify a U.S. citizen from sponsoring another person for a green card. Generally, the following criminal convictions will prevent a sponsor from bringing a family member to the U.S. (but not in all cases):
- Any conduct that is, by its nature, a sex offense committed against a minor
- Criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct
- False imprisonment
- Kidnapping
- Possession, production, or distribution of child pornography
- Solicitation of a minor to engage in sexual conduct
- Solicitation of a minor to practice prostitution
- Use of a minor in a sexual performance
- Video voyeurism as defined in Title 18 U.S.C., section 1801
These crimes, collectively called offenses against a minor, are included in the Immigration and Nationality Act (INA)—(more specifically, in the Adam Walsh Child Protection and Safety Act of 2006, which is a part of the INA). It’s important to know that the Adam Walsh Act applies to convictions for equivalent crimes committed in foreign countries unless the U.S. citizen didn’t receive a fair trial in that country.
If you haven’t been convicted of any offenses against a minor, you aren’t automatically barred from petitioning for a green card for your spouse or family member.
If a person has been charged with any of these crimes but the charges were dropped, or if the person was found not guilty, the offenses should not affect the person’s ability to sponsor an immigrant. However, you should speak to a criminal immigration attorney to be sure.
Can You Show That You’ve Been Rehabilitated and Be Exempted from the Adam Walsh Act?
You may attempt to get an exemption from the Adam Walsh Act by showing that you’ve been rehabilitated from your past crimes and do not pose a threat to the safety of the person whom you’re trying to sponsor. You must prove this to the Department of Homeland Security (DHS) beyond a reasonable doubt. It’s solely up to DHS to decide whether to make this exception in your case, and you cannot appeal its decision.
To help prove that you have been reformed, you’ll need to provide evidence that includes:
- Documents showing that you’ve successfully completed rehabilitation or participated in community organizations
- Certificates of completion for therapy programs or counseling classes
- Medical records supplied by psychiatrists or psychologists
If you find yourself in this situation, you should contact an experienced criminal immigration attorney who can make a tailored plan to help you meet your objectives.
Can You Still Sponsor Someone for a Green Card if You Have Convictions That Aren’t Offenses Against a Minor?
If you don’t have convictions for offenses against a minor but have still been convicted before, you may be able to sponsor your spouse or relative for a green card. USCIS, however, may still seek more information about any prior convictions you have to determine if it will approve your petition, and it may disclose those findings to the intending immigrant.
When deciding if your petition will be approved, USCIS may consider if you’ve been rehabilitated, the extremity of your crime (a misdemeanor or a felony, for example), and how long ago you committed the crime.
Can You Still Sponsor Someone If You’ve Only Been Arrested and Not Convicted?
An arrest on your record can be a subjective occurrence and may not be an ultimate determination of guilt. Still, although you may not have been convicted of a crime, USCIS will evaluate your arrest record to decide if you qualify to sponsor someone for a green card.
Talk to a Criminal Immigration Attorney About Getting a Green Card with a Criminal Conviction
You may be able to get a green card with a criminal conviction – and we may be able to help you. Call us at 512-829-7881 or schedule a free consultation with acriminal immigration attorney who will answer your questions and help put you on the right path.