In order to visit the U.S., foreign nationals must in many cases (where entry on the Visa Waiver Program isn't available from their country) obtain visitor visas (B visas) from the U.S. embassy or consulate in their home country.
The process to obtain a B visa can be difficult for anyone, but especially challenging for a foreign national with a criminal record. The reason is that U.S. immigration law (I.N.A. § 212) states that foreign nationals with various types of criminal convictions are "inadmissible" to the U.S., meaning that they are not allowed to enter the U.S.on any sort of visa.
Not all crimes automatically result in visa ineligibility. For example, a misdemeanor drunk driving conviction is not a criminal visa ineligibility (although it might result in a medical ineligibility for alcoholism plus dangerous behavior.)
Theft crimes, drug crimes, crimes against others (like assault) or crimes against the government (like tax fraud) will usually result in visa ineligibility.
Although you can read the statutory section yourself, inadmissibility can be hard to figure out. You might not even be able to tell that your criminal conviction makes you inadmissible until the U.S. consular officer makes this determination.
U.S. immigration law also contains an important exception, for cases where a foreign national was convicted of only one crime and the maximum jail sentence for that crime is less than one year in that jurisdiction. This is called the “sentencing exception.”
If the sentencing exception does not apply, a foreign national might be eligible for a waiver of inadmissibility from the U.S. government. This allows a foreign national to enter the U.S. notwithstanding a criminal record, although the visa might be valid for only one trip or for a limited duration of time.
Criminal inadmissibility grounds apply to all foreign nationals seeking to enter the U.S. in almost every visa category, not just as tourists. Thus, if you are planning on coming to the U.S. as a student (with an F-1 visa) or to work temporarily (with an H-1B visa, O-1 visa, or other work visa) and you have a criminal visa ineligibility, you will be required to obtain a waiver before you can successfully get a visa to enter the United States.
Both U.S. and foreign criminal convictions can result in a criminal ground of inadmissibility. You will be required to provide your fingerprints as part of the visa application process. These will be checked against thousands of law enforcement databases, including all U.S. law enforcement databases.
Additionally, U.S. embassies and consulates utilize various methods to obtain foreign law enforcement records. These records are now publicly available in an increasing number of countries. Lying about your record, or otherwise trying to conceal the information, can result in a permanent visa ineligibility based on misrepresentation.
In order to get a waiver, you must first meet all the requirements of the visa, regardless of your criminal record. For example, to qualify for a tourist visa, the consular officer must be convinced you will return to your home country at the end of your permitted stay.
If you meet all the standard visa requirements, the consular officer must then decide whether to recommend the waiver. If you have a recent conviction or have committed a serious crime, the consular officer might not be willing to do so. The consular officer will also consider the purpose of your travel and the U.S. interests served by your trip. For example, if were convicted ten years ago for possessing a small amount of marijuana, have a strong financial situation, and have never had any other convictions, you would likely be a good candidate for a waiver recommendation.
If the consular officer recommends the waiver, the request is forwarded to the Customs and Border Protection Admissibility Review Office (ARO). This type of inadmissibility waiver (for foreign nationals trying to come to the U.S. with a nonimmigrant/temporary visa) is called a 212(d)(3) waiver, because it's from Section 212(d)(3) of the U.S. Immigration and Nationality Act (I.N.A.).
212(d)(3) waivers are granted solely in the discretion of the U.S. government. No foreign national has an absolute legal right to receive a 212(d)(3) waiver. ARO considers factors similar to those the consular officer considered when deciding whether to recommend the waiver.
While the consular officer’s recommendation is the most determinative factor, the ARO also considers the potential risk of harm to society if the foreign national is admitted, the severity and recency of the crime, and the reasons the foreign national wants to travel to the United States. In most cases, these reasons do not have to be “compelling.” This means that the government can approve a waiver request if the foreign national is seeking to enter the U.S. only in order to visit Disneyland, see the Grand Canyon, and so forth. The foreign national need not have an emergency reason (such as visiting a deathly ill U.S. relative) in order to obtain a 212(d)(3) waiver.
There is no separate application process for a 212(d)(3) waiver related to a visitor visa. After your visa interview, if the consular officer is recommending the waiver, the consular officer will forward the request to the ARO electronically. The consular officer might request a foreign police certificate or court documents to scan and forward with the waiver request.
If you know that you have a criminal record, it might be helpful to locate your court documents ahead of time, and check the U.S. embassy website for post-specific requirements. .
The ARO makes the final determination on your application. If the ARO approves your application, it will return the notice of approval to the U.S. consulate in your home country and the consulate will issue your visitor visa.
If the ARO denies your waiver application, it does not mean that you will never be able to receive a U.S. visa. If you apply for a visa in the future, a new waiver request can be sent and the ARO will review your new waiver request. It is usually best to wait at least a year before reapplying, as you are unlikely to obtain a different outcome before then, because your circumstances will likely be unchanged.
If you do not agree with or understand the decision of the consular officer or the ARO, an immigration attorney can explain your options and help you decide whether to appeal the decision.