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

If you are applying for a U.S. immigrant visa or green card and you have a criminal record, be sure to have a thorough analysis of your criminal case history done before proceeding. The reason is to find out whether your crime makes you “inadmissible” to the United States (ineligible for a visa or green card). Many, but not all crimes result in inadmissibility. And if yours does too, it's best to know this in advance, so as to prepare whatever documents and arguments might convince U.S. immigration authorities to grant your case regardless.

Which Crimes Make a Non-Citizen Inadmissible to the U.S.?

U.S. immigration laws list a number of crimes that make a person "inadmissible," or ineligible for a green card. (See the law on this at 8 U.S.C. § 1182.) The major ones include:

• crimes of moral turpitude (CIMTs)
• drug trafficking
• kidnapping
• prostitution
• human trafficking
• money laundering, and
• multiple criminal convictions with an aggregate sentence of at least five years.

To find out more, see Can You Get a Green Card If You Have a Criminal Record?

For Which Crimes Can Someone Receive a Waiver of Inadmissibility?

If the crime you committed is one that makes you legally 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 a special decision to overlook your crime and allow you to receive a green card regardless.

Not all crimes allow for the possibility of a waiver; and of course, not all waivers that people request are ultimately granted. You can apply for a waiver only if you were convicted of one of the following (except murder or torture):

• a crime of moral turpitude (CIMT)
• prostitution
• unlawful commercialized vice whether or not related to prostitution
• 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 the crime on your record 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 and can show that denial of your green card would cause extreme hardship to them, or
• you are a VAWA (Violence Against Women Act) self-petitioner.

Waiver Application Materials and Procedures

The process of applying for a waiver involves also preparing a Form I-601 and supporting documents, then sending it, with a fee (in most cases), to United States Citizenship and Immigration Services (USCIS). There are exceptions to the fee requirements for certain humanitarian categories; or if you're low-income, you can request a fee waiver using Form I-912.

Sometimes the waiver application must be sent to the U.S. government at the same time as you submit your green card or immigrant visa application; other times one follows the other.

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

However, waivers are among the more complex areas of immigration law. A successful waiver request involves more than just presenting facts, such as a certificate for having completed a rehab program. 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 were denied. This involves creating or gathering such documentation as personal affidavits, doctors’ reports, statements by probation officers, and more. And the exact procedures depend on whether you're applying in the United States or abroad, among other factors.

Waiver Filing Procedures for U.S. Adjustment of Status

If applying for a green card in the United States (adjusting status using Form I-485), 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 the I-601 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 found on USCIS’s website and in the Form I-601 instructions.

If required to attend an adjustment of status interview, as is all but guaranteed for most categories of applicants, you can submit the waiver request at the USCIS 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 it, and specifying a deadline 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 you've done so.

Waiver Filing Procedures in Removal Proceedings

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

Waiver Filing Procedures for Consular Processing

If you are applying for a green card at a United States consulate or embassy abroad, you will need to wait to file the waiver until you've submitted your other application materials and attended the green card interview. At the interview, the U.S. consular officer will first determine whether your conviction bars you from obtaining a green card and, if so, whether you are potentially eligible for a waiver. If it appears you could be waiver-eligible, the officer will give you information concerning how to apply for it.

The exact procedure for filing a waiver is different for each U.S. consulate or embassy. Many include instructions concerning how to apply on their website, which you can find via the U.S. Department of State website, www.usembassy.gov. Those instructions might, however, tell you to send your application to a USCIS office in the United States, rather than to the consulate itself.

Waiver Filing Procedures for VAWA Self Petitioners and T Visa Holders

VAWA self-petitioners (seeking an immigrant visa or adjustment of status under the Violence Against Women Act (VAWA) and T nonimmigrant visa holders seeking adjustment of status must send their waiver application to the Nebraska Service Center regardless of whether they live inside or outside the United States. See the form instructions and USCIS website for the address.

Do You Need an Attorney?

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. See, for example, How to Find an Excellent Immigration Lawyer Near Me.