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Green Card Applications and Criminal Records

May 27, 2021
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Summary

An important part of the green card application is the criminal background check that the U.S. Citizenship and Immigration Services (USCIS) runs on every applicant. The U.S. Congress has compiled a list of crimes that can make an immigrant “inadmissible” to the United States under U.S. immigration law. For example, being convicted of an “aggravated felony” can disqualify you from getting a green card and any future naturalization benefits. This article explains how an applicant’s criminal record can affect their green card application, the types of criminal convictions that will impact their chances of approval, and how to use waivers of inadmissibility.

Overview

Does a Criminal Record Affect my Green Card Application?

Before you can become a lawful permanent resident, the U.S. Citizenship and Immigration Service (USCIS) first needs to make sure you have not had trouble with law enforcement that could disqualify you in any way from getting a green card.

You must list any incidents you have had with law enforcement on your green card application, either in your home country or in the United States. Your list should include every citation, arrest, or criminal charge on your application, even criminal charges that were later dropped. The only incidents you don’t need to mention are traffic violations. You have to be truthful and honest in reporting these incidents. Lying on your application will only hurt your chances of getting a green card.

Not every criminal offense will negatively affect your green card application. Under U.S. immigration law, three types of criminal convictions make you “inadmissible.” This means if you have a conviction for any of these three types of crimes, you can’t get a green card: 

  • Aggravated felonies
  • Illegal drug involvement
  • Crimes involving moral turpitude

What is a conviction?

The Immigration and Nationality Act (INA) describes a conviction as a situation where a court found you guilty of a crime or where you pled guilty to a crime, even if the court did not list it on your record. So, it is possible to have a conviction even if you don’t have a criminal record. An immigration lawyer can help you figure out if you have a criminal conviction that disqualifies you from applying for a green card.

What Criminal Convictions Will Impact my Chances of Getting a Green Card?

Convictions that will negatively affect your green card application are aggravated felonies, crimes of “moral turpitude,” or illegal drug involvement. You can read about each of these conviction types in this section.

Aggravated Felony

Under U.S. immigration law, an aggravated felony is one of a list of misdemeanor and felony crimes that the U.S. Congress has set. Aggravated felonies include murder, sexual abuse of a minor, money laundering, drug trafficking, human trafficking, among others. If you commit an aggravated felony, you will be “inadmissible” to the United States. 

Crimes of “Moral Turpitude”

U.S. immigration law describes a crime of “moral turpitude” as a crime committed with “evil intent.” The way U.S. Citizenship and Immigration Services (USCIS) decides that a criminal conviction involves “evil intent” is entirely subjective. Generally, USCIS determines that someone committed a crime with “evil intent'' based on whether the immigration courts and USCIS have previously decided in a similar criminal case that the crime’s intent was malicious.

Some criminal convictions that USCIS has described as under “moral turpitude” include:

  • Murder
  • Rape
  • Fraud

These crimes make you “inadmissible” to the United States. Sometimes you can waive inadmissibility for some crimes of “moral turpitude” in the immigration process. This means you can ask USCIS to make an exception for you. However, it is complicated to waive inadmissibility due to violent crimes and those involving torture. And a murder conviction disqualifies you from getting a green card altogether. If a court has found you guilty, or you pled guilty to a crime of moral turpitude and would like to waive it, it’s a good idea to speak with an immigration attorney

Illegal Drug Involvement

Drug-related criminal convictions can also affect your green card application. For immigration law purposes, drug involvement covers drug trafficking, personal use convictions, and possession of controlled substances convictions. Drug crimes involving more than 30 grams of controlled substances will make you inadmissible, which generally disqualifies you from applying for U.S. lawful permanent residence. 

If you have only one drug conviction, and it was for carrying 30 grams or fewer of cannabis, you may be able to apply for a waiver of inadmissibility. The process is complicated, however, and it would help to reach out to an immigration lawyer

What is a Waiver of Inadmissibility, and How Can I Get One?

A waiver of inadmissibility is a request you can make to U.S. Citizenship and Immigration Services (USCIS) so that they don’t make your criminal history a barrier to getting your green card. You cannot get a waiver of inadmissibility for all criminal convictions, however. Applicants can only waive a few types of convictions. You cannot waive inadmissibility for murder, torture, and drug convictions. You can only get a waiver of inadmissibility for a drug conviction for drug possession of, at most, 30 grams of cannabis for personal use. 

You’ll have to file Form I-601 with the help of an immigration attorney. Form I-601 is the official application for a waiver of inadmissibility. When you apply for the waiver, you’ll have to prove that your U.S. citizen or green card holder sponsor will suffer extreme hardship if you can’t live and work in the United States. You’ll also have to prove that you have changed your behavior and that you will not harm anyone else if you get to stay in the United States. It is a very complicated process, and you’ll need an immigration lawyer’s help.

If you apply for a green card from the United States, you can either file Form I-601 with the rest of your green card application or at your green card interview. If you are applying from abroad, you can only apply for the waiver at your green card interview.

How Does USCIS Check Criminal Records in the Green Card Application Process?

When you apply for a green card, U.S. Citizenship and Immigration Services (USCIS) checks your criminal record with the information you provide at your biometrics screening. USCIS can also learn about your criminal background at your green card interview.

All green card applicants have to attend a biometrics screening, either at a local USCIS office or a U.S. government office in your home country. At the screening, an officer will collect your biometric information like your photograph, fingerprints, and signature. USCIS uses this biometric information to run a criminal background check on you in the FBI’s database. 

Every green card application also needs a police certificate with details of your criminal history. USCIS considers foreign and domestic criminal convictions when determining a foreign national’s eligibility for a green card. At your green card interview, USCIS can ask for details from your criminal record. If there’s something on your record that you are unsure about, talking to a qualified immigration lawyer before submitting your application is key.

How Do I Answer the Criminal History Portion of my Green Card Application?

You must truthfully and honestly answer every question in the green card application. Admitting to past criminal activity that may jeopardize your chances of getting your green card is understandably frightening, but committing another crime by lying on your application will disqualify you altogether. The last thing you want is any more immigration issues.

If you’re applying from within the United States (called an adjustment of status), you will have to provide information about your criminal history on Form I-485, Application to Adjust Status. Similarly, if you’re applying from abroad (called consular processing), you will answer criminal history questions on Form DS-260, Immigrant Visa Application.

While some crimes bar you from getting a green card, not every conviction in your record will have the same effect. You should provide accurate and complete information about these things on your application. If you have any criminal convictions on your record or in your background, it is crucial to talk to an immigration attorney about how to go about disclosing them. Immigration attorneys will be able to provide you with legal insight and instructions about how to go about making your case for an immigrant visa.

USA.gov has immigration lawyers that offer their services either for free or at a low cost. If you are interested in talking to a lawyer but can’t afford to hire a law firm, you may be able to use their Legal Aid service.

Can I Sponsor Someone’s Green Card Application if I Have a Criminal Record?

Sometimes, it’s not the green card applicant themself that has a criminal record but their sponsor. For many family-based green card applications, the spouse, parent, or child applying needs a sponsor. To sponsor a green card applicant, you must be a U.S. citizen or lawful permanent resident. 

It is ultimately up to U.S. Citizenship and Immigration Service’s (USCIS) discretion to decide whether you can sponsor a green card applicant. Under immigration law, convictions involving offenses against minors disqualify you from sponsoring a green card application. Some of these offenses include:

  • A sex offense against a minor
  • Production, possession, or distribution of child pornography
  • Involving a minor in a sexual performance
  • An offense involving child kidnapping
  • An offense involving requesting to engage in sexual conduct with a minor

You can check out some more examples of disqualifying convictions in Section 204 of the Immigration Nationality Act

If you are unsure if you qualify to sponsor a green card application, check with an immigration lawyer.

Conclusion

Applying for a green card as someone with a criminal record can be complicated, but working with a good immigration attorney can make it easier. If you can’t afford the attorney fees and don’t want to handle your green card application alone, we may be able to help. If you are eligible, our free web app will walk you through the process and help you prepare and file your application with the U.S. government. Click “Get Started” to see how we can help make your American dream come true!

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