A criminal record can have a disastrous impact on a foreign national's ability to gain future entry into the U.S., including on an immigrant visa (otherwise known as lawful permanent residence or a green card). For applicants who have committed serious crimes, obtaining a green card will likely be impossible. Applicants who have been convicted of low-level crimes might, however, still be able to obtain approval for lawful U.S. residence.
Whether your crime is serious in the eyes of the U.S. courts, and whether it will prevent you from getting a green card, might not be easy to determine. The key factors to consider (most likely with the help of a lawyer) are:
This information will need to be compared with the federal immigration laws addressing criminal convictions (contained in the Immigration and Nationality Act, or I.N.A.) to assess whether a green card remains a possibility.
A person convicted of a crime involving moral turpitude (CIMT) or a controlled substance violation will be denied a green card unless the conviction fits one of the exceptions listed below. A controlled substance violation includes illegally possessing drugs such as cocaine, marijuana, or heroine. (Although marijuana use is legal in some states, it remains prohibited by federal law, and thus problematic for immigrants.)
The meaning of "moral turpitude," however, was not set out by Congress when it drafted the law. U.S. courts have had to take on the job of defining it, and their decisions have not always been consistent.
For the sake of simplicity, it is best said that a CIMT involves some evil intent. Thus, crimes like murder, fraud, theft, and more serious crimes of violence will be considered CIMTs, whereas simple assault or battery, a DUI (with no aggravating factors) or an infraction (such as moving and parking violations) will probably not.
Ultimately, it is best to seek out a qualified attorney to assess whether a specific crime involves moral turpitude.
A person convicted of a CIMT or a controlled substance violation may still be granted a green card if the crime fits within one of a few exceptions. They are:
The Immigration and Nationality Act (I.N.A.) specifically describes various other crimes that will keep a person from obtaining a green card based on inadmissibility. (See 8 U.S.C. § 1182(a)(2).) These include:
It also includes cases where the person committed a serious criminal offense (as defined by I.N.A. § 101(h) or 8 U.S.C. § 1101(h)) and then asserted immunity from prosecution, left the United States, and refused to submit to the jurisdiction of a U.S. court.
In addition, even if someone commits a crime that does not match one of the grounds of inadmissibility under the immigration statute, U.S. immigration authorities may deny the green card as a matter of discretion. This is likely to happen if you have been convicted of an "aggravated felony," described in the portion of the immigration statutes that discusses whether people who already have green cards are deportable (I.N.A. § 101(a)(43), 8 U.S.C. § 1101(a)(43).)
Examples of "aggravated felonies" include murder, rape, sexual abuse of a minor, and various serious theft and money-laundering offenses.
A number of U.S. states allow a crime to be removed from a person's record. One method involves the removal (expungement) or sealing of the court record after a conviction.
Another occurs prior to a final order, in which a judge will defer action while the person takes part in a program and probation. After completing the program and probation, the record is removed. This second method includes such programs as diversion, which is usually for first-time drug offenders; and the record is cleared after the person completes a program of, for instance, drug counseling and/or community service and probation.
Even after these crimes are removed from the record, however, they will likely still prevent a foreign national form obtaining a green card. For immigration law purposes, a conviction can almost never be removed. A person granted diversion will be deemed to have a conviction if he or she was required to enter a plea before the judge granted diversion.
The impact of a foreign conviction on a person's green card application can be even harder to determine, though it can definitely lead to inadmissibility. The conviction will need to be compared to laws in the U.S. to find the one that most closely resembles the foreign conviction before assessing whether a green card is possible.
You might be able to ask for what's called a "waiver," or legal forgiveness of your crime. This depends on the nature of the crime itself, as well as your subsequent rehabilitation or connection to family members who are U.S. citizens or permanent residents.
Interpreting the impact of a particular crime on green card eligibility is one of the more complex areas of immigration law. While similar criminal laws might exist among the various states and countries, each jurisdiction crafts its laws differently. Thus, each law under which a person is convicted must be compared to what is listed in the federal immigration statutes.
We strongly recommend that any foreign national with a criminal record, whether eligible for a green card now or thinking of applying for one in the future, consult with an immigration attorney as soon as possible to assess the impact of the conviction upon the immigration process.