Can a Crime Be Waived So I Can Get a Green Card?

If your crime makes you "inadmissible" to the U.S., it's possible that it can be excused or, in legal language, "waived."

If you are applying for a U.S. visa or green card and you have a criminal record,  have a thorough analysis of your criminal case history done before proceeding with your immigration application. First, you will need to find out whether your crime makes you “inadmissible” to the United States (ineligible for a visa or green card). Some, but not all crimes result in inadmissibility. To find out more, see “Can You Get a Green Card If You Have a Criminal Record?

If the crime you committed is one that makes you inadmissible, you will next need to look into whether it can be excused or, in legal language, “waived.” This means that, after receiving your waiver application, the U.S. government makes an individual decision to overlook your crime and allow you to receive a green card regardless. Not all crimes qualify for a waiver and of course, not all waivers are granted.

You can apply for a waiver only if you were convicted of the following (except murder or torture):

  • prostitution
  • unlawful commercialized vice whether or not related to prostitution
  • a crime of moral turpitude (CIMT)
  • simple possession of 30 grams or less of marijuana
  • multiple criminal convictions with an aggregate sentence of confinement of at least five years, or
  • a serious criminal offense (as defined in the Immigration and Nationality Act or I.N.A., § 101(h)) in a case where you asserted immunity from prosecution, left the United States, and refused to submit to the jurisdiction of a U.S. court.

Assuming your crime fits one of these categories, you can apply for a waiver if one of the following applies to your situation:

  • you committed the crime at least 15 years ago (except in a case of prostitution for which there is no required waiting period) and can show that giving you a green card would not be contrary to the national welfare, safety, or security of the United States, and can also demonstrate that you have been rehabilitated
  • you are the spouse, parent, son or daughter of a U.S. citizen or green card holder who can show that denial of your green card would cause extreme hardship to the U.S. citizen/green card holder, or
  • you are a VAWA (Violence Against Women Act) self-petitioner.

Forms and Documents Required for the Waiver Application Process

The process of applying for a waiver involves filing a Form I-601, with fee, when applying for a green card. VAWA self-petitioners can request that the filing fee be waived. The form can be found on United States Citizenship and Immigration Services (USCIS) website (www.uscis.gov).

In addition to the form, you are required to include documentation demonstrating how you are qualified for the waiver and why the waiver should be granted. You’ll see lists of examples of the types of documentation needed for the waiver in the form instructions.

However, waivers can be one of the more complex areas of immigration law. Presenting a successful waiver request often involves more than a presentation of facts -- you’ll have to convince an immigration official that, for example, you have truly turned your life around, or that your family would experience greater-than-average hardship if your green card is denied. This involves creating or gathering such documentation as personal affidavits, doctors’ reports, statements by probation officers, and more. Therefore, it is best to seek the help of a qualified immigration attorney when filing a waiver.

Waiver Filing Procedures for Consular Processing

If applying for a green card at a United States consulate or embassy abroad, you will need to wait, and file the waiver only after the green card interview. At the interview, the consular officer will first determine whether your conviction bars you from obtaining a green card and, if so, whether you are eligible for a waiver. If eligible, the officer will give you information concerning how to apply for the waiver.

The procedure for filing the waiver is different for each consulate or embassy. Many include instructions concerning how to apply for the waiver on their website. You can find the consulate or embassy website at the following U.S. Department of State website: www.usembassy.gov. There are plans to change the waiver filing procedure soon, such that all applicants outside the U.S. will send their waiver application directly to an address in the United States.

Waiver Filing Procedures for U.S. Adjustment of Status

If applying for a green card in the United States, you can file the waiver request either with the green card application, after the green card application is filed but still pending, or at or after your green card interview (if you’re required to attend an interview).

If filing with the green card application, you will usually attach the waiver request to that application. If filing while the green card application is pending, you will need to send it to a specific address that can be found on USCIS’s website and in the Form I-601 instructions.

If required to attend an interview, which is highly likely, you can submit the waiver at the interview or after. If you choose to submit the waiver after the interview, the USCIS officer will give you a paper with instructions detailing where to send the waiver, and specifying a deadline date for filling. If you choose to file the waiver at or after the interview, you will need to pay the fee at the local USCIS office before filing the waiver. Once you pay the fee, USCIS will stamp the form showing that the fee has been paid. 

Waiver Filing Procedures in Removal Proceedings

If in removal proceedings, you will file your waiver as directed by the court. It will be doubly important in this instance that you have the help of an attorney.

Waiver Filing Procedures for VAWA Self Petitioners

VAWA self-petitioners must send their waiver application to the Vermont Service Center regardless of whether they live inside or outside the United States. Please see the form instructions and USCIS website for the Vermont Service Center address. 

This is not an area where you should attempt do-it-yourself efforts. The stakes are high, and you can assume that the immigration authorities, upon seeing a crime on your record, will be looking for reasons to deny, not grant you a green card. Speak to an experienced immigration attorney.

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