Applying for a U.S. Work Visa With a Criminal Record

If you have found a U.S. employer to sponsor you for an employment-based visa, any past criminal activity may come back to haunt you.

If you have a job offer in the United States and an employer willing to help you acquire a temporary U.S. employment visa in order to accept it, but you have a criminal record, it is very likely you are inadmissible. That means you would be ineligible for a work visa (or any other visa or green card) to enter the United States. This holds true even if you don’t have a formal conviction or even a formal arrest on your record.

The good news is, if your criminal record renders you inadmissible, depending on the crime, you may still be able to ask the U.S. government to overlook ("waive") the crime for the purpose of obtaining legal employment in the United States. The not so good news is that you'll almost certainly need to hire a good immigration lawyer, which will add to the cost of the process.

How Do I Know Whether My Crime Makes Me Inadmissible?

The list all of the crimes that can cause someone to become inadmissible for a visa is a long one, and we cannot simply summarize it here. Because of the strict U.S. immigration laws, even the most non-serious of illegal activity can trigger inadmissibility, such as admitting that you once experimented with marijuana.

You can find several helpful discussions about types of inadmissibility and learn more about the different categories of crimes in this article on crimes and immigrant inadmissibility.

If I Am Inadmissible, What's Next?

If you suspect that you might be found inadmissible, or a U.S. embassy, consulate, or other immigration official tells you that you are inadmissible, you may be able to ask for a nonimmigrant waiver of inadmissibility. This is called a 212(d)(3) nonimmigrant waiver. However, some serious crimes cannot be waived. In that case you would not be eligible for the waiver or for a work visa.

Which Crimes Can Be Waived?

Many factors determine whether or not a criminal record or history can be overcome, such as the nature of the crime, the number of incidences, and the amount of time the person was imprisoned. To start, crimes that cannot be overcome are:

  • a conviction for an offense involving drugs, with the exception of a single offense of possession of less than 30 grams of marijuana
  • an attempt or conspiracy to commit murder or a criminal act involving torture, and
  • a previous false claim to U.S. citizenship, for example, when the person filled out forms for unauthorized employment in the U.S., to obtain a passport, or even just made a verbal response to inquiry by a government official or a police officer. (Note: In this situation, absent a finding of a lack good moral character, the relief of cancellation of removal may still be available).

Applying for a 212(d)(3) Nonimmigrant Waiver of Inadmissibility

The 212(d)(3) nonimmigrant waiver is discretionary, meaning that the decision of whether or not to recommend it in your case will depend on whether or not you have convinced the officer assigned to you that you are deserving of the waiver. There is no special form to file with the visa application.

After you submit your visa application, the consular officer will schedule an interview for you and ask questions about your criminal history and the circumstances surrounding the crime (among other questions). The officer will decide whether a waiver should be granted. The decision will be based on:

  • The risk of harm to society if you are admitted
  • The seriousness of the your prior criminal law violations, and
  • Your reasons for wishing to enter the U.S.

After making a decision, the consular officer will make a report to Department of Homeland Security (DHS). If he or she did not completely feel you are deserving of a waiver and makes an unfavorable recommendation, your application for a work visa may be denied.

What If I Don't Reveal My Criminal Record?

Lying (misrepresentation) on a visa application is a fraud against the U.S. government. That act in itself triggers inadmissibility and ineligibility for a visa. If your failure to disclose the crime is discovered, your visa application will definitely be denied. If you attempt to file another visa application in the future, your troubles will be compounded in that you will have two violations to overcome instead of just the original crime.

What Are My Chances of Getting a Waiver?

It is not possible to predict the outcome of your case without an analysis of your crime and the facts surrounding your individual situation. You would be well served by consulting with an experienced immigration lawyer to discuss your situation before filing your application in order to optimize your chances of obtaining a work visa to the United States.

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