Problems Adjusting Status With a Criminal Record

If you're trying to become a legal permanent resident through the adjustment of status process and you've got any kind of criminal record, expect some (potentially serious) legal issues along the way.

Any encounter with law enforcement or evidence of past drug activity, even without an arrest or conviction, can pose serious issues for people applying for a green card (Adjustment of Status) to become a  permanent resident of the United States.

What You're Asked About During the Adjustment of Status Process

If you are planning to adjust status to lawful permanent resident (LPR), you can expect U.S. Citizenship and Immigration Services (USCIS) to ask you about, as well as check your record for, past criminal activity.

You will notice several questions about this on Form I-485 (the primary form for adjusting status), such as "Have you ever, in or outside of the United States, knowingly committed any crime of moral turpitude or a drug-related offense for which you have not been arrested," and "Have you ever, in or outside of the United States, been arrested, cited, charged, convicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations."  

As you can see, USCIS's particular focus is to look for:

  1. acts of moral turpitude or drug activity (whether you were arrested or not), and    
  2. encounters with law enforcement (whether the crime is serious or not, and regardless of whether you were arrested or convicted, with traffic violations the one exception).

The underlying issue is whether you are "inadmissible" to the United States. For more about inadmissibility based on criminal history, see Can You Get a Green Card If You Have a Criminal Record?

What Crimes Involving Moral Turpitude Are

Moral turpitude  is a legal concept defined in law dictionaries as "conduct that is considered contrary to community standards of justice, honesty or good morals,” and further interpreted by many court decisions. Neither a formal arrest nor a court conviction is necessary for USCIS to deny an application for a green card on moral turpitude grounds. There are three primary categories of crimes involving moral turpitude:

  1. fraud;
  2. larceny; and
  3. intent to cause personal harm or destruction of property/things.

The list of acts and crimes that are considered to be of moral turpitude is long, and even the simplest act can be construed as such. Since we’re dealing with immigration issues, it's worth mentioning that the act of lying on an immigrant visa application is an act involving moral turpitude. Lying on a visa application is a fraud against the U.S. government.

If an applicant lies to avoid divulging a past crime, the problem becomes much more serious, particularly if the first crime was also one of moral turpitude: Two crimes of moral turpitude will automatically result in visa denial and render the person inadmissible to the U.S. and ineligible for a visa.

How USCIS Confirms Your Statements on Your Adjustment of Status Application

When USCIS begins processing an application for adjustment of status, it will require the applicant to undergo fingerprinting and a thorough background check.  If a green card applicant has been arrested, cited, indicted, or imprisoned, even if there was no court conviction, the information is available to immigration officials via a national database managed by the FBI.  So, again, lying is not the answer.

What If You Have a History of Criminal Activity?

Depending on the crime or activity at issue, it is still possible the situation can be overcome if you know what relief may be available and apply for it. There are many factors that determine whether or not a criminal record or history can be overcome, such as the nature of the crime, the number of incidences, and the amount of time imprisoned. To start, crimes that  cannot  be overcome are:

  • a conviction for an offense involving drugs, with the exception of a  single  offense of possession of less than 30 grams of marijuana,
  • a conviction    (or a situation where the person has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture, or
  • a previous false claim to U.S. citizenship, for example, when the person filled out forms for unauthorized employment in the U.S., to obtain a passport, or even just made a verbal response to inquiry by a government official or a police officer. (Note: In this situation, absent a finding of a lack good moral character, the relief of cancellation of removal may still be available).

See a Lawyer

Overcoming criminal activity to become a permanent resident is no easy task, and you should not attempt to evaluate your eligibility based solely on the information above. There are waivers available for certain criminal grounds of inadmissibility, but even if you meet the basic criteria, you must still convince the U.S. government that allowing you to become a resident is not contrary to the welfare of the U.S. public and that you are deserving of a waiver.

Hiring an attorney will add some cost to your adjustment of status application, but can save you from potentially serious legal issues. Be sure to consult an experienced immigration attorney to discuss the situation  before  filing an application for a green card. Doing so will optimize the chance of approval so that your family can reside together without interruption or possible removal from the United States.

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