Problems Adjusting Status With a Criminal Record

Any past encounter with law enforcement or evidence of drug activity, even without an arrest or conviction, can pose serious issues for people applying for a green card within the United States (adjustment of status). They might be found "inadmissible" and therefore ineligible to become a U.S. permanent resident.

Just to be clear, the "adjustment of status" process discussed in this article is only for people already living in the U.S., most likely with lawful immigration status. Overseas applicants typically obtain U.S. residence via a different procedure, called "consular processing." Nevertheless, they too will be examined for any criminal record and resulting inadmissibility.

What Question About Crimes Are Asked 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 relevant questions 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 on:

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).

Again, 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 Are "Crimes Involving Moral Turpitude"?

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 federal court decisions. Neither a formal arrest nor a court conviction is necessary for USCIS to deny an application for a green card on crime involving moral turpitude (CIMT) grounds.

There are three main categories of crimes involving moral turpitude:

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

The list of acts and crimes that are considered to be of moral turpitude is long. Even the act of lying on an immigrant visa application could be viewed as involving moral turpitude and a crime, because it defrauds the U.S. government.

If an applicant lies to avoid divulging a past crime, the problem becomes 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 green card.

How USCIS Confirms Statements on an Adjustment of Status Application

When USCIS begins processing an application for adjustment of status, it will require the applicant to undergo fingerprinting (through a "biometrics" appointment) and then run a thorough background check. If an applicant has been arrested, cited, indicted, or imprisoned, even if there was no court conviction, that 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 to overcome it and obtain a green card if you know what relief might be available (such as a waiver) and apply for it. Many factors 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 might still be available).

See Can a Crime Be Waived So I Can Get a Green Card? for more on the possibilities.

See a Lawyer for Help in Obtaining a Green Card

Overcoming criminal activity to become a permanent resident is no easy task. Do 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 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.