If your foreign fiancé(e) has an arrest, conviction, or other criminal record, the U.S. government may deny the K-1 visa. Here are your legal options.
If you want to bring a fiancé(e) into the U.S. on a K-1 visa to get married and possibly apply for a green card, and your fiancé has a criminal record, that fact is likely to trigger inadmissibility (see 8 U.S.C. § 1182). In other words, your fiancé would be ineligible for the visa or to enter the United States at all. This can even hold true for crimes that have been expunged (wiped off) someone's police record.
However, depending on the crime, it might still be possible to bring a fiancé into the United States in one of two ways:
- A fiancé who was convicted of only one crime and meets certain other criteria might qualify for the "sentencing exception," which is discussed later in this article.
- A fiancé who does not qualify for the sentencing exception might still be eligible to request a waiver of inadmissibility.
How Do I Know Whether a Crime Triggers Inadmissibility?
Because of the strict immigration laws in the U.S., even some misdemeanors can trigger inadmissibility. This includes most crimes involving theft, drugs, and crimes against other people (such as assault) or against the government (such as tax fraud.)
A single DUI conviction (driving under the influence) will not result in a criminal visa ineligibility, but could lead to a medical visa ineligibility for alcoholism associated with dangerous behavior.
To learn more about the different categories of crimes that will trigger inadmissibility see What Crimes Make Immigrants Inadmissible to the U.S.?
How Might the Sentencing Exception Help Someone With a Criminal Record Get a K-1 Visa?
If your overseas fiancé was convicted of only one crime and the maximum penalty possible for that crime is less than one year, they should not be found inadmissible. This exception does not take into account the actual sentence length given to the person, but rather the maximum penalty that could have been given. The sentencing exception does not apply to drug crimes.
For example, if your fiancé were convicted of misdemeanor shoplifting, which is a theft crime, they would ordinarily be found inadmissible. If, however, the maximum sentence a judge could give for misdemeanor shoplifting in that jurisdiction is less than one year, and your fiancé has not been convicted of any other crimes, your fiancé would not need a waiver of inadmissibility to go ahead with the visa application.
What Is a Waiver of Inadmissibility?
A waiver of inadmissibility essentially asks the U.S. government to overlook someone's criminal record so that they can receive a visa to enter the United States (or receive some other immigration benefit).
Although the K-1 is technically a nonimmigrant visa, under which circumstances a person would normally request a nonimmigrant waiver, the fiancé visa is treated a little differently. After all, your fiancé very likely intends to remain in the U.S. permanently, by filing for adjustment of status (a green card) after the marriage.
Therefore, the fiancé would need to request an immigrant waiver by filing USCIS Form I-601, Application for Waiver of Grounds of Inadmissibility, along with supporting evidence and a fee.
Which Criminal Convictions Can Be Waived for a K-1 Visa Applicant?
Many types of crimes can be waived, or legally forgiven, if the K-1 visa applicant can make a convincing case for deserving a waiver (as discussed below), with these exceptions:
- a conviction for drug possession (with the exception of a single offense of possession of less than 30 grams of marijuana)
- any drug trafficking conviction, or
- a conviction for murder or a crime involving torture, or admitting or conspiring to commit murder or a crime involving torture.
If you not sure whether your fiancé's criminal conviction can be waived, you have two options:
- Consult an immigration attorney. Knowing in advance whether your fiancé will need a waiver will save you time by enabling your fiancé to prepare the waiver packet and apply for the waiver immediately after the K-1 visa interview.
- Have your fiancé go ahead and submit the K-1 visa application. If the consular officer subsequently determines that your fiancé is inadmissible, your fiancé will be informed of such, advised as to whether or not a waiver is available, and given time within which to apply for the waiver.
What Are the Grounds for Granting a Waiver of Criminal Inadmissibility?
Even if a waiver is available, your fiancé will still have to convince the U.S. government that they deserve it. Each application is decided based on the particular circumstances of the situation. Applicants must meet strict criteria, and decisions are made on a case-by-case basis.
To obtain approval, a fiancé must demonstrate to the U.S. government that a "qualifying relative" (in this case, the intended U.S. citizen spouse) will face extreme hardship if the waiver is not granted.
General hardships, such as financial issues and family separation, are to be expected if someone's fiancé is denied a U.S. visa. Therefore, such hardships alone are not usually sufficient to meet the extreme standard. Hardship to the U.S. citizen is taken into account, and is one of the primary factors in determining whether a waiver will be approved, but hardships to your foreign-born fiancé and other family members may also be considered.
Meanwhile, all negative factors relating to your fiancé will be considered and weighed against the favorable hardship factors, such as:
- whether or not admitting your fiancé into the U.S. would be contrary to the country's welfare, safety, or security
- the severity and recency of the crime, and
- whether or not your fiancé has been rehabilitated since committing the crime.
In a nutshell, while the U.S. government wants to protect the U.S. citizen from hardship that is extreme, it must also safeguard society as a whole.
Learn more about what factors constitute extreme hardship in Showing Extreme Hardship for the I-601 Waiver Process.
What Are the Chances an I-601 Waiver Will Be Granted?
It is not possible to predict the outcome of a case without an in-depth analysis of the facts surrounding the situation. The chances of a denial are high, so consult with an experienced immigration attorney to discuss your situation before filing an application for a K-1 fiancé visa.
