Coming to the U.S. With a Criminal Record

Many types of criminal history affect a person’s admissibility to the United States, including their ability to obtain a visa or permanent residency.

The types of criminal history that may have this effect include the following:

• Conviction of or admission to crimes involving moral turpitude (“CIMTs“) (8 USC 1182(a)(2)(A)(i)). The definition of CIMT is based on case law and includes crimes related to stealing, bodily harm, and sex.
• Conviction of or admission to any controlled substance violation, or participation in controlled substance trafficking (8 USC 1182(a)(2)(A)(i)(II) and 8 USC 1182(a)(2)(C))
• Conviction of two or more offenses for which the aggregate sentences to confinement were 5 years or more (8 USC 1182(a)(2)(B))
• Prostitution and commercialized vice (8 USC 1182(a)(2)(D))
• Human trafficking (8 USC 1182(a)(2)(H))
• Money laundering (8 USC 1182(a)(2)(I))
• Terrorism (8 USC 1182(a)(3)(B))
• Violation of immigration laws (8 USC 1182(a)(6))
• International child abduction (8 USC 1182(a)(10)(C))
• Unlawful voting (8 USC 1182(a)(10)(D))

In addition, any prior arrest or conviction in any country will disqualify a person from using ESTA, even if they are from an ESTA-eligible country and are only coming to the United States for a short visit. Foreign nationals who build a criminal record while in the United States should also be aware of the risk of deportation, which can have more lasting consequences.

Waivers for Non-Immigrant Visas

For individuals applying for non-immigrant visas, such as visitor visas, student visas, treaty trader/investor visas, and H-1B visas, the 212(d)(3) waiver is available. Almost any criminal history can be waived through this process, provided that the government is convinced that the individual poses a low risk of causing further trouble while in the United States. This waiver is typically requested following the visa interview and may take months to process.

As part of our immigration services, we can assist visa applicants with preparing the right documentation and the right explanation to take to their visa interview, maximizing their chances to obtain a waiver. Contact us to discuss obtaining a waiver for your situation.

Waivers for Immigrant Visas (Green Cards)

For individuals applying for an immigrant visa or green card, the 212(h) waiver is available in the following three cases:

1. The activities occurred more than 15 years ago, the alien has been rehabilitated, and their admission would not be contrary to the national welfare, safety, or security of the United States.
2. Immediate relatives of US citizens or permanent residents, if denial of admission would result in extreme hardship to that citizen or permanent resident.
3. Violence Against Women Act (VAWA) self-petitioners.

The 212(h) waiver is also more narrow than the 212(d)(3) waiver in the number of crimes that it applies to. It can be used for individuals with a history of a CIMT, multiple offenses, possession of 30 grams or less of marijuana, or prostitution/vice offenses, but will not overcome other violations that result in inadmissibility. This waiver requires a filing with USCIS on Form I-601. Applicants for visas overseas will typically request the waiver after their visa interview following the recommendation of the consular officer reviewing their application.

As part of our immigration services, we can assist visa applicants with planning for the waiver process and preparing their I-601, maximizing their chances to obtain a waiver.