Does a criminal record mean that I can never obtain any immigration benefit?
If you’re an immigrant who has ever been arrested, summonsed to court, admitted to criminal activity, or convicted of certain criminal offenses, you must discuss your legal history with an immigration attorney before submitting any paperwork to any US government agency or attending any interview or hearing. A broad category of crimes can render an individual ‘inadmissible’ to the United States and can trigger deportment proceedings of a legal resident.
But having a criminal history or record does not necessarily mean that USCIS or the Department of State will deny your visa application. Although certain criminal cases and circumstances can make it more difficult to succeed in your immigration case, it is not necessarily impossible. Below are some important issues to consider and to discuss with an immigration attorney if you have them in your history. (There are NOT the only criminal issues to consider.)
Convictions for “Crimes of Moral Turpitude”: If a court has found you guilty of, or you have admitted the essential elements of, a crime involving moral turpitude, a controlled substance violation or certain other crimes, you are automatically rendered ‘inadmissible’ to the United States. For certain crimes, you do not need a conviction or an admission to be rendered inadmissible; USCIS or the Department of State can suspect you of criminal activity and deem you ineligible to enter the US or receive a green card in the US.
That said, not all crimes are considered equal. Under limited circumstances, you may qualify for a “petty offense exception.” This exception is a request for legal forgiveness that, if granted, would allow you to proceed with your immigration case.
Or, you may be eligible for a waiver of inadmissibility for crimes of moral turpitude. To be eligible for the waiver, you must show that your US citizen or LPR spouse or parent will suffer “extreme hardship” if you are not granted the waiver. This waiver is NOT available based on hardship to your US citizen or LPR children.
For applicants for green card, there is absolutely no waiver of inadmissibility for any drug crimes, with the limited exception of certain crimes of possession of marijuana. This rule has a devastating impact on many immigrants who have convictions for minor possession crimes. Also, even when a drug conviction is very old and the individual is fully rehabilitated, there is no waiver of inadmissibility for drug crimes for applicants for green cards. Strangely, the blanket INA 212(d) waiver is available to any applicant for a temporary (nonimmigrant) visa, and such waiver does not require a showing of hardship to a US citizen or LPR relative.
Guilty pleas: Many immigrants and often their criminal defense attorneys do not realize that for immigration purposes a guilty plea is equivalent to a conviction. If you have pled guilty to an offense, the United States Citizenship and Immigration Services (USCIS) will view the crime exactly the same as if a judge or jury convicted you. Such guilty plea may make you ineligible for a green card and/or temporary visas and may make you “removable”/“deportable” if you are in the US.
Continued Without A Finding (CWOF): In Massachusetts, a defendant may dispose of a criminal case through with a “Continued Without a Finding” (CWOF). To receive this disposition, the defendant agrees that the prosecution presented sufficient facts to prove a case at trial, which federal immigration law equates to an admission to having committed the crime. From the perspective of Massachusetts criminal law, the case is considered “dismissed” if the defendant successfully completes the period of probation that accompanies the CWOF.
But the case is not considered “dismissed” for immigration purposes. The USCIS treats a CWOF as an admission of guilt because the defendant admits that the facts presented by the prosecution are sufficient to prove guilt. Thus, even if you had a CWOF and a “clean” record under Massachusetts law, you may be ineligible for a green card and/or temporary visas and “removable”/“deportable” if you are in the US.
Pre-Trial Probation: Massachusetts has a disposition of “pre-trial probation” where the defendant does not admit to any facts of the charges crimes, does not admit guilt and is not found guilty, but is put on probation for a period. After successful completion of the pre-trial probation period, the charges are dismissed in way that does not affect your eligibility for immigration benefits. I advise all of my non-US citizen clients to hire an excellent criminal defense attorney, with the hope that they can obtain the excellent outcome of “pre-trial probation.”
If you or a loved one are seeking immigration benefits but have been arrested anywhere in the world and/or have a criminal record anywhere in the world, it is essential that you speak with an experienced immigration attorney before submitting any application or attending any interview or hearing with USCIS, ICE, or the Immigration Court.