Applying for a Green Card With a DUI or Reckless Driving Conviction

How a drunk driving conviction on record could harm a person's ability to obtain a U.S. green card, based on "inadmissibility."

When applying to adjust status to U.S. permanent resident—that is, to get a U.S. green card—you will be asked whether you have been "arrested, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations." In other words, U.S. Citizenship and Immigration Services (USCIS) wants to know about any criminal-related acts on an applicant's record, except for traffic tickets. Convictions for DUI (driving under the influence; also sometimes called DWI, or driving while intoxicated), as well as reckless driving are more serious than traffic tickets, and you're expected to report them on your immigration application.

But don't automatically assume that you will be denied the green card. Although certain criminal acts do make a person "inadmissible," in which case a green card (or other visa) will be denied, not all do—this area of law is quite complex. Talk to an attorney if you face this situation, using the guidance below as background information. We'll cover:

  • the definition of a conviction under U.S. immigration law
  • what types of criminal convictions lead to inadmissibility under U.S. immigration law
  • whether a DUI is among the grounds of inadmissibility
  • whether a reckless driving conviction is among the grounds of inadmissibility
  • whether applicants can apply for a waiver of inadmissibility, and
  • what could happen if you try to conceal the conviction from U.S. immigration authorities.

What's Considered a "Conviction" for Immigration Purposes?

Conviction means that a court (a judge or jury) has found you guilty or you have entered a plea of guilty or nolo contendere (in which you refuse to enter a plea). In addition, the judge must have sentenced you to some form of punishment, penalty, or restraint of liberty.

Whether you actually serve the sentence or it is suspended does not matter to whether you're considered to have been convicted. In fact, whether your state's law refers to the decision as a conviction doesn't matter, either. The federal immigration laws override this with their own concept of what a conviction is. (See the Immigration and Nationality Act (I.N.A.) § 101(a)(48)(A), 8 U.S.C. § 1101(a)(48)(A).)

Check out, Criminal Convictions & Immigration: Suspended Sentence, Execution of Sentence & Pretrial Diversion, to learn more.

What Types of Criminal Convictions Make a Person Inadmissible to the U.S.?

You won't find one straightforward list of crimes making U.S. visa applicants inadmissible.

For starters, people who have been convicted of crimes involving mortal turpitude are considered inadmissible. Moral turpitude is hard to define—decisions are made on a case-by-case basis. Some courts have described moral turpitude as being base, vile, depraved, contrary to common societal norms of morality, or involving an evil intent or a corrupt mind.

People who have committed two or more crimes of any sort, with a combined sentence of five or more years, are also inadmissible.

Certain listed crimes (such as prostitution or selling drugs) can also make a person inadmissible, but DUIs, "wet reckless," and reckless driving are not on that list.

Will a Drunk Driving Conviction Make You Inadmissible to the U.S.?

For a crime to be considered a crime involving moral turpitude (CIMT), it must have been done with intent. DUIs do not require any intent, so one DUI will typically not be considered a crime involving moral turpitude.

However, if the DUI was committed along with another offense—such as reckless driving or use of illegal drugs—or if aggravating factors were present, like driving without a valid driver's license, or with a child in the car, or if you injured someone, it could be a different story. For example, driving drunk with a child in the car could be seen as disregard for the safety of others, thus supplying the intent required to call the crime a CIMT.

Not all DUIs involve alcohol (or solely alcohol). In some cases, illegal use of a controlled substance is part of the conviction—and it happens to be a separate ground of inadmissibility.

One more thing to consider is that if the DUI or drug use stems from an addiction, USCIS could ask for a medical report and then find you inadmissible on public health grounds.

Will a Reckless Driving or "Wet Reckless" Conviction Make You Inadmissible?

Reckless driving refers to driving a vehicle in a manner that endangers the lives of others on the road. A conviction for reckless driving could be seen to involve moral turpitude. As with DUIs, additional charges or aggravating circumstances can also increase the likelihood that USCIS will call find moral turpitude, or that the original act will add up to multiple crimes and therefore make the applicant inadmissible.

Is a Waiver Available for Inadmissibility Based on a DUI?

For most crimes of moral turpitude (other than serious crimes such as murder or torture), a limited waiver is available to someone who is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident. You would need to show that your U.S. citizen or lawful permanent resident spouse, parent or child would suffer extreme hardship if your adjustment of status was denied.

Don't Attempt to Conceal the Conviction From U.S. Immigration Authorities

Hiding past criminal incidents will get you nowhere. For one thing, the fingerprint check that's always part of the application process will likely lead to discovery. For another, making false representations in order to obtain an immigration benefit is a ground of inadmissibility by itself.

See an Immigration Lawyer

If you have a DUI or reckless driving conviction, or any run-in with the justice system, consult with an experienced U.S. immigration attorney—ideally one who specializes in the intersection of criminal and immigration laws.

Don't just rely on what your criminal attorney says. Countless cases exist where the criminal attorneys thought they were doing the right thing for the client, for example advising "plead guilty to this and you can avoid jail time." Little did they realize that certain sorts of guilty pleas could lead to the immigrant's becoming inadmissible to (or, if they've already gotten a green card, removable from) the United States.

Talk to an Immigration attorney.
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