Category Archives: immigration consequences of criminal convictions

Immigrant Visa Process: Delays and Setbacks

Posted on May 28, 2016 | Comments Off on Immigrant Visa Process: Delays and Setbacks

delaysIf you seek permanent residence through an immigrant petition filed by a family member or employer and you are outside the U.S. (or are in the U.S. but cannot file for adjustment of status), you must obtain your immigrant visa at the U.S. Consulate.

Known as “consular processing,” this pathway to a green card often involves delays and setbacks at all stages of the application process.

#1: WAITING FOR PETITION APPROVAL

Family-Based Immigration

In family-based immigration, only relatives who fall in specific family-based categories qualify for an immigrant visa. The first step is for a U.S. citizen or permanent resident relative to file a Form I-130 petition for you to immigrate to the U.S.

Employment-Based Immigration

In employment-based immigration, only persons who fall in designated employment-based categories qualify for an immigrant visa. A U.S. employer usually has to file a Form I-140, Immigrant Petition for Alien Worker, for you to immigrate to the U.S.  In the employment-based fourth preference(EB-4) immigrant category, the U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

In some cases, the I-140 petition may be filed by the foreign national beneficiary, such as in EB-1 Extraordinary Ability and EB-2 National Interest Waiver petitions.

In the employment-based fifth preference (EB-5) immigrant category, the Form I-526, Immigrant Petition by Alien Entrepreneur, is filed by the foreign national immigrant investor.

Delays and Setbacks

Long Processing Time

Due to case volume and other factors, USCIS’ processing times for immigrant petitions vary greatly (e.g. 4 to 12 months). If there is a backlog in your visa category, USCIS may also put the petition on the backburner.

During processing, USCIS may issue a Request for Evidence (RFE) when there is insufficient information or documents to approve the petition. In some cases, USCIS may issue a Notice of Intent to Deny Petition (NOID) when it finds the beneficiary is not eligible for the benefit sought. USCIS will not approve the petition unless an adequate and timely response is submitted.

The date USCIS receives the petition, not the date USCIS approves the petition, affects when an immigrant visa becomes available in the preference categories. Nevertheless, the petition must first be approved before you may apply for an immigrant visa.

Challenges with Proving Eligibility in Family-Based Immigration

Documentary evidence

In family-based immigration, petitioners must show they have the required relationship with the beneficiary, besides presenting documentary proof of their U.S. citizenship or permanent residence.

Proving a parent-child relationship can be a problem when there is no birth certificate or when the birth certificate was registered late.

Proving a legal, bona fide marriage in spousal petitions carries challenges. The petitioner must present the requisite marriage certificate and divorce decrees (for any prior marriages), showing the marriage was legal in the place where it occurred.

Furthermore, the petitioner must provide documentary evidence establishing the marriage was entered into in good faith, for the purpose of creating a life together as spouses, and not for immigration purposes. When the petitioner lives in the U.S. while the beneficiary lives overseas, there is limited documents to present. For example, there is no joint lease, joint bills, joint tax returns or other documents that married couples who live together would normally have.

Adam Walsh Act

The Adam Walsh Child Protection and Safety Act, which was signed into law in 2006,  prohibits U.S. citizens and permanent residents who were convicted of a “specified offense” against a minor from petitioning for family members, particularly a spouse or a child. USCIS may not approve these I-130 petitions unless it finds the petitioner poses “no risk” to the family member.

Significant delays, notices of intent to deny, and decisions denying the immigrant petition often results when the Adam Walsh Act applies.

Challenges with Proving Eligibility in Employment-Based Immigration

Documentary evidence

In employment-based immigration, the petition must contain extensive, reliable documentary evidence of the beneficiary’s qualifications, including the requisite degree, academic records, and support letters from current and past employers. Those who are filing for EB-1 and EB-2 (Exceptional Ability and National Interest Waiver) classification must also provide specific evidence showing they meet the criteria.

Immigrant petitions that require job offers must also include evidence that the U.S. employer has the ability to pay the proffered wage. Examples are copies of annual reports, federal tax returns, or audited financial statements.

Labor Certification in EB-2 and EB-3 categories

Immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and professionals with a bachelor’s degree, skilled workers, and unskilled workers (EB-3) must be accompanied by a PERM Labor Certification issued by the Department of Labor.

Prior to filing the I-140 petition, the U.S. employer must complete a process to recruit U.S. workers and then file for the labor certification. The DOL must certify to the USCIS there are insufficient U.S. workers able, willing, qualified and available to accept the job in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Forwarding of Case from USCIS to NVC

Upon completing review of the immigrant petition, USCIS issues a decision. If the petition is denied, the notice will include the reasons for denying the petition and explain any rights to appeal the decision. If the petition is approved and you are applying for an immigrant visa abroad, USCIS will forward the approved petition to the U.S. Department of State’s National Visa Center (NVC).

#2: WAITING FOR INSTRUCTIONS FROM NATIONAL VISA CENTER (NVC)

Even with an approved immigrant petition, you may not start applying for an immigrant visa until one is available or is about to become available. The only category in which immigrant visas are always available is the immediate relatives (family-based) category. Immediate relatives include:

  • The spouse of a U.S. citizen
  • Minor child (under age 21) of a U.S. citizen
  • Parent of an adult U.S. citizen (age 21 or older)
  • Step-parent of an adult U.S. citizen (if the step-parent, step-child relationship began before the citizen’s 18th birthday)
  • Step-child of a U.S. citizen (if the step-parent, step-child relationship began before the step-child’s 18th birthday)
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen)

Those in the family-sponsored preference and employment-based categories must wait for their priority date to become current.

The NVC is responsible for processing immigrant visa applications before they are forwarded to the U.S. Consulate. It will send instructions to the petitioner and/or beneficiary when an immigrant visa is about to become available.

Delays and Setbacks

Backlog in the Preference Categories

The priority date marks the applicant’s place in the visa queue. In family-sponsored, preference categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative, or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, the priority date is the date the Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the I-140 petition (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

In October 2015, the Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available. If your priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, you may receive an immigrant visa following completion of the application process.

DFAs are the cut-off dates that determine when the applicant should receive instructions from the NVC to submit documents for consular processing. When your priority date is earlier than the cut-off date in the DFA chart, you may submit required documents to the NVC, following receipt of instructions to do so.

When demand exceeds supply of visas for a given year in a given category or country, a visa backlog forms. It usually takes several years for a visa to become available.  In the F4 (brother or sister of adult U.S. citizen) category, for example, the wait for a visa to become available is usually 10+ years.

Challenges with Submitting Required Forms and Documents

At the appropriate time, the NVC will send instructions to the visa applicant to pay the appropriate fees: Form DS-260, online immigrant visa application fee, and Form I-864, Affidavit of Support fee (in all family-based immigration cases and in certain employment-based immigration cases).

After the fees are paid, the NVC will request the visa applicant to submit the required documents, including DS-260 application form and civil documents (e.g. birth certificate, police certificate, and photocopy of valid passport biographic data page) .

Visa applicants must also submit a Form I-864 and supporting financial documents proving they will not become a public charge to the U.S. government (in all family-based immigration cases, and in certain employment-based immigration cases where a U.S. citizen or permanent resident relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition).

The NVC will issue a Request for Evidence if the visa applicant fails to submit all the required documents, such as his birth certificate, police certificate, and Form I-864 with supporting financial evidence.

Forwarding of Case from NVC to U.S. Consulate

The NVC will forward the immigrant visa  file to the U.S. Consulate only when it is satisfied that all required forms and documents have been submitted. The NVC may termination registration (close case) when applicants have not responded to its instructions within one year.

#3. WAITING FOR IMMIGRANT VISA INTERVIEW

After your case becomes qualified for an interview, NVC will work with the appropriate U.S. Consulate to schedule an appointment for you.

Visa interviews are normally scheduled one month in advance.  The U.S. Consulates inform the NVC of the dates they are holding interviews, and NVC fills these appointments on a first-in, first-out basis. Most interviews are scheduled within 60 days of NVC’s receipt of all required documents.

Delays and Setbacks

Completing Medical Examination

An immigrant visa cannot be issued if you do not complete the medical examination, along with required vaccinations, by an authorized panel physician in your country.

Prior to the interview, you should schedule and complete the required medical examination. Completing the medical examination after the visa interview will delay your case until the U.S. Consulate receives the results.

Completing the medical examination too soon (well before the interview) can cause delays as well. The medical report is valid for one year from the date of the medical examination. The examination must be redone if the report has expired or will expire before you enter the United States.

Failing to Appear at Visa Interview or Requesting Rescheduling

Although you usually have a month’s notice, you have no control over when the visa interview is scheduled. Failure to appear could lead to significant delays or a termination of your visa application. Requests for interview rescheduling will delay processing by several months.

#4: WAITING FOR IMMIGRANT VISA GRANT

At the visa interview, you will be expected to submit original documents or certified copies, such as your birth certificate and marriage certificate (if applicable). The consular officer will verify the authenticity of the documents and question you about your eligibility for the visa.

The U.S. Consulates have tremendous power in deciding whether to grant an immigrant visa. The doctrine of consular non-reviewability prohibits judicial review of visa denials. There is no formal appeal process to challenge a visa denial.

Delays and Setbacks

Administrative Processing

Section 221(g) of the Immigration & Nationality Act (INA) allows the U.S. Consulate to conduct further administrative processing before it issues the visa or determines whether you are eligible for the visa.

Administrative processing involves a wide range of activities. Examples are request for a Security Advisory Opinion (SAO) from the Department of State on whether the applicant poses a risk to the United States; more in-depth investigation to check for fraud; and request for review by a supervisor at the U.S. Consulate.

There is generally nothing you can do to speed up administrative processing and you are not told why it is necessary. While the delay is frustrating, cases that are otherwise approvable are rarely sent for administrative processing.

Incomplete Application

Under section 221(g) of the INA, a consular officer may refuse to grant the visa due to missing information on the application forms or missing documents. For example, when the visa application is based on a spousal petition, the U.S. Consulate may request additional documentary evidence of the bona fide nature of the marriage. In some cases, it may return the petition to USCIS for revocation if it determines the petition should not have been approved.

Inadmissibility Finding

Section 212(a) of the INA lists various grounds under which a visa applicant is inadmissible to the U.S. (i.e. barred from entering the U.S.) The most common include fraud or willful misrepresentation of material facts to gain immigration benefits; crime-related problems; unlawful presence in the U.S. lasting more than 180 days; public charge issues; and illegal re-entries into the U.S.

Waivers of inadmissibility are available for some grounds and not for others. When a waiver is available, the visa applicant must also meet the requirements to apply for it.

If the U.S. Consulate finds you are inadmissible to the U.S., it will not grant the immigrant visa unless you (a) successfully challenge the finding by filing a motion to reconsider with the Consulate or (b) obtain a waiver of inadmissibility by filing a Form I-601 and/or Form I-212 with the appropriate agency.

* * *

If all goes well, the U.S. Consulate will stamp an immigrant visa in your passport, which is normally valid for six months. It will also give you a sealed Visa Packet containing documents you must present to U.S. Customs and Border Protection at a port-of-entry (e.g. airport) upon your arrival in the United States. Do not open the sealed packet.

The CBP will verify whether  you are admissible to the U.S. before it admits you to the U.S. as a permanent resident. The CBP’s endorsement of the visa serves as temporary evidence of your immigrant status. You will be mailed your green card after you pay the USCIS Immigrant Fee.

Applying for an immigrant visa often involves delays and setbacks in all stages of the process. Work with an experienced immigration attorney to maximize your chances of obtaining an approval in the fastest time possible.

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, The Legal Immigrant - Immigration Blog, waiver

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What should you do to get an I-601 waiver for criminal grounds?

Posted on January 30, 2016 | Comments Off on What should you do to get an I-601 waiver for criminal grounds?

Section 212(a)(2) of the Immigration & Nationality Act (INA) permanently bars you from adjusting to permanent residence or being lawfully admitted to the U.S. (either as an immigrant or nonimmigrant) on criminal and related grounds. When you have a lifetime ban due to a Crime Involving Moral Turpitude (CIMT) or controlled substance violation, for example, you need an I-601 waiver, available under INA § 212(h).

What Must You  Submit When Requesting an I-601 [INA § 212(h)] Waiver?

A section 212(h) waiver applicant must submit a completed and signed Form I-601, Application for Waiver of Grounds of Inadmissibility. The Form I-601 filing fee and sometimes a biometrics fee are required.

The Form I-601 instructions include a list of supporting documents you should submit with your waiver request. Examples are affidavits from yourself and third parties describing hardships and/or rehabilitation; expert opinions; medical documentation; and reports of conditions in your home country.

Evidence of extreme hardship 

If you qualify for the waiver on the basis that your U.S. citizen or permanent resident spouse, parent, son or daughter, or K visa petitioner, will suffer extreme hardship if you are denied admission to the U.S., you must present documentary evidence of the “extreme hardship.”

The agency considers a variety of factors when determining whether there is extreme hardship. They include:

  • Health: Ongoing or specialized treatment requirements for a physical or mental condition; availability and quality of such treatment in your country, anticipated duration of the treatment; whether a condition is chronic or acute, or long-or short-term; need for applicant to assist with physical or mental conditions.
  • Financial Considerations: Future employability; loss due to sale of home or business or termination of a professional practice; decline in standard of living; ability to recoup short-term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (e.g. elderly and sick parents).
  • Education:  Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program; requirement to be educated in a foreign language or culture with ensuing loss of time for grade or pay level; availability of special requirements, such as training programs or internships in specific fields.
  • Personal Considerations: Close relatives in the U.S.; separation from spouse or children; ages of involved parties; length of residence and community ties in the U.S.
  • Special Factors: Cultural and language barriers; religious and ethnic obstacles; social unrest or civil war in your country; valid fears of persecution, physical harm, or injury; social ostracism or stigma; access to social institutions or structures for support, guidance and protection.

Evidence of rehabilitation| Evidence that your admission would not be against the national welfare, safety, or security of the United States

Evidence of your rehabilitation and evidence that your admission would not harm the national welfare, safety, or security of the U.S. are especially important when you are filing for the waiver on these grounds. Such evidence is also essential to showing the positive factors outweigh the negative factors in your case.

The agency considers several factors when determining whether there is rehabilitation. They include:

  • Passage of time since the last conviction
  • The court order regarding sentence imposed and whether the applicant is likely to commit another offense
  • The applicant’s participation in a rehabilitation program, such as alcohol or drug treatment program, if alcohol or drug use contributed to the crime
  • The applicant’s active involvement in community activities and volunteer work
  • A grant of expungement or pardon
  • A psychological evaluation confirming the crime resulted from a mental problem for which the applicant is being treated

Does Having an Immigration Attorney Make a Difference? 

Filling out the Form I-601 is just the first step. The harder part is convincing the agency that you are eligible for the waiver and deserve it as a matter of discretion.

Although “extreme hardship” is not defined by immigration law, it is more than just the normal emotional hardships or financial difficulties that result from family separation or relocation.  A good lawyer will help you prove your qualifying relatives would suffer extreme hardship if they are separated from you while you are abroad, or if they move overseas to be with you.

The presence of aggravating factors (e.g. conviction for a serious offense, recent convictions) and lack of mitigating factors (e.g. participation in a rehabilitation program) can lead to a denial of your waiver request. Needing another waiver, such as a section 212(i) waiver (for immigration fraud/willful misrepresentation) or a section 212(a)(9)(B)(v) waiver (for unlawful presence), further complicates your case. A good lawyer will help you prove the favorable factors outweigh the unfavorable factors in your case.

It’s much harder to get an I-601 waiver [INA § 212(h) waiver] when you file it on your own and don’t have the benefit of counsel. You have 30 days to file a motion to reopen/reconsider or an appeal if your waiver request is denied. Otherwise, you may re-file the application with new, material evidence. Federal courts lack jurisdiction to review an agency’s decision on an I-601 waiver.

A diligent, experienced immigration attorney will advise you on the documentary evidence to submit, prepare a legal brief explaining how you qualify for the waiver and why you deserve it, and put together a strong waiver application to maximize the chance of success.

For more information on when the crime-related bar applies, who qualifies for the I-601 [INA § 212(h)] Waiver, and the limitations of the waiver, read our related article, When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Tiago Pinheiro

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Posted in adjustment of status, good moral character, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, K-1 visa, K-3 visa, The Legal Immigrant - Immigration Blog, waiver

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When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Posted on January 30, 2016 | Comments Off on When do you need an I-601 Waiver due to criminal grounds (and how do you get it)?

Certain criminal offenses bar you from adjusting to permanent resident status or from entering the U.S. as a permanent resident or an immigrant, K-3 nonimmigrant, or K-1 fiancé(e) visa holder.

To overcome crime-related bars to reentry, prospective immigrants or permanent residents seeking admission to the U.S. must file for and receive an I-601 waiver when available under section 212(h) of the Immigration & Nationality Act. If the I-601 waiver is granted, you may then adjust status, enter the U.S. on an immigrant, K-3 or K-1 visa, or be admitted as a permanent resident.

 

When Are You Inadmissible Due to Criminal and Related Grounds [INA§ 212(a)(2)]? 

Crime-related grounds of inadmissibility are permanent bars to adjusting to permanent residence within the U.S., obtaining a visa for entry to the U.S., or being lawfully admitted to the U.S.

Crime Involving Moral Turpitude

Section 212(a)(2)(A) (i)(I) of the Immigration & Nationality Act (INA) states foreign nationals are inadmissible to the U.S. if they have been convicted of – or admit to committing – (at least) one Crime Involving Moral Turpitude (CIMT), other than a purely political offense.

Even when there is no conviction, there is a valid admission of a crime when the USCIS officer or U.S. consular officer follows formal procedures to obtain it, including placing the applicant under oath and having him admit to all the key elements of the crime.

A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent. Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

You are not inadmissible due to a CIMT when you qualify for:

1. the petty offense exception, where you committed only one CIMT ever, the CIMT has a potential sentence of one year or less, and a sentence of six months or less was imposed ; OR

2. the youthful offender exception, where you committed only one CIMT while under age 18, and at least five years have passed since your conviction and release from jail.

Controlled Substance Violation

Section 212(a)(2)(A) (i)(II) of the INA states that foreign nationals are inadmissible if they violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21. To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation.

On a medical examination report, in connection with a green card or immigrant visa application, a person may acknowledge to a civil surgeon or a panel physician that he or she has used a controlled substance, which the physician then may annotate on the medical documentation. While this acknowledgement, by itself, is not a valid admission to a controlled substance violation, it opens a line of questioning to determine criminal inadmissibility.

Arrests and charges for controlled substance violations – even when there is no conviction or guilty plea –  also usually results in further questioning at the green card or immigrant visa interview.

As with obtaining a valid admission to a CIMT, a USCIS officer or U.S. consular officer may place the applicant under oath and use certain procedures to procure a formal admission to a controlled substance violation.

Multiple Criminal Convictions

Section 212(a)(2)(B) of the INA states that foreign nationals are inadmissible to if they are convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offense arose from a single scheme of misconduct, and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more.

Controlled Substance Traffickers

Section 212(a)(2)(C) of the INA bars foreign nationals who the U.S. consular officer or U.S government knows or has reason to believe is a controlled substance trafficker. This includes a person who:

1. is or has been an illicit trafficker in any controlled substance listed in section 802 of Title 21, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled substance.

or

2. is the spouse, son, or daughter of a person inadmissible as an illicit trafficker, has obtained financial or other benefit from the illicit activity within the last 5 years, and knew or reasonably should have known that the financial or or other benefit resulted from such illicit activity.

Prostitution and Commercialized Vice

Section 212(a)(2)(D)(i) of the INA states that foreign nationals are inadmissible if they are coming to the U.S. solely, principally, or incidentally to engage in prostitution, or have engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.

Section 212(a)(2)(D)(ii) of the INA adds that foreign nationals are inadmissible if they directly or indirectly procure or attempt to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receive or (within such 10-year period) received the proceeds of prostitution.

Section 212(a)(2)(D)(iii) of the INA further bars foreign nationals who are coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution.

Certain Aliens Involved in Serious Criminal Activity Who Have Asserted Immunity from Prosecution

Under section 212(a)(2)(E) of the INA, a foreign national:

(i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h) of the INA – i.e. any felony, any crime of violence, and any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or prohibited substances if such crime involves personal injury to another),

(ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

(iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

(iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense,

is inadmissible.

Foreign Government Officials Who Committed Particularly Severe Violations of Religious Freedom

Under section 212(a)(2)(G) of the INA, a person who, while serving as a foreign government official, was responsible for or carried out particularly severe violations of religious freedom is inadmissible.

Significant Traffickers in Persons

Under section 212(a)(2)(H) of the INA, a person who commits or conspires to commit human trafficking offenses in or outside the U.S., or who the U.S. government knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe human trafficking, is inadmissible.

A spouse, son or daughter of a human trafficker, who has, within the previous 5 years, benefited from the illicit activity, or knew or should have known that he benefit was the product of such illicit activity, is also inadmissible. One exception is if the son or daughter was a child at the time he or she received the benefit.

Money Laundering

Section 212(a)(2)(I) of the INA states that a person who the U.S. government knows, or has reason to believe, has engaged, is engaging, or seeks to enter the U.S. to engage, in money laundering is inadmissible. A person who the U.S. government knows is, or has been, a knowing aider, abettor, assister, conspirator, or colluder with others in money laundering, is also inadmissible.

When Do You Need an I-601 [INA § 212(h)] Waiver Due to Criminal and Related Grounds? 

Intended immigrants and permanent residents need an I-601 waiver under section 212(h) of the INA when they are barred from admission to the U.S. due to the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

When you are inadmissible due to crime-related grounds, you need the INA 212(h) waiver to get a green card, an immigrant visa, or a K visa to enter the U.S. or to be lawfully admitted to the U.S. as a permanent resident.

What are the Limitations of the I-601 [INA § 212(h)] Waiver?

The I-601 waiver under section 212(h) of the INA has several limitations:

It is not available for all crime-related grounds of inadmissibility. The I-601 waiver is unavailable to persons who are deemed inadmissible under sections:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to one single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

(NOTE TO NONIMMIGRANTS: A special authorization for admission as a nonimmigrant for crime-related grounds is available under section 212(d)(3)(A) of the INA. Whether you qualify for the nonimmigrant visa itself is a separate issue.)

It is not available to certain foreign nationals. The waiver cannot be granted, as a matter of discretion, to:

1. A foreign national who has been convicted of, or admitted committing murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

2. A foreign national who was granted permanent residence and failed to accrue at least seven years of lawful continuous residence in the U.S. before receiving a Notice to Appear in removal proceedings.

[NOTE: On May 12, 2015, the Board of Immigration Appeals issued a decision, Matter of J-H-J, 26 I&N Dec. 563 (BIA 2015), stating that a person who adjusted to permanent resident status in the U.S. and who did not enter the country as an LPR is not barred from establishing 212(h) eligibility as a result of an aggravated felony conviction.   Based on this BIA decision, only those who entered the U.S. as LPRs and thereafter are convicted of an aggravated felony are prohibited from applying for a 212(h)waiver.]

 

It does not waive prior removal orders and multiple illegal entries. The I-601 waiver does not cover the 5-year, 10-year, and 20-year bar due to prior removal orders. It also does not cover permanent bars caused by multiple unlawful entries into the U.S. To overcome such grounds of inadmissibility, you need to qualify for, seek and obtain an I-212 waiver by filing a Form I-212, Application for Permission to Reapply for Admission into the United States after Deportation or Removal .

It is not usually a stand-alone application. To obtain a section 212(h) waiver, the person must be applying or reapplying for adjustment of status, for a visa, or for admission to the United States. The section 212(h) waiver request is usually filed in conjunction with an I-485, adjustment of status application or an immigrant, K-3 or K-1 visa application.

One situation that allows a stand-alone request is when a permanent resident leaves the U.S. and is then charged as inadmissible, due to crime-related grounds, upon request for re-entry. Permanent residents who commit criminal offenses that make them inadmissible do not receive automatic re-entry to the U.S. Instead, they may file a stand-alone § 212(h) waiver in removal proceedings to retain their status. Stand-alone § 212(h) waivers may also be filed by immigrant visa holders, in which case, the waiver must be granted retroactively (nunc pro tunc) to make the visa valid.

Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, lawful permanent residents (green card holders) who depart the U.S. and seek re-entry are generally not regarded as seeking admission and are thus not subject to INA 212 inadmissibility grounds. But when any of the six exceptions under INA § 101(a)(13)(C) applies, permanent residents are subject to being denied admission to the U.S. One is when the permanent resident has committed a criminal offense listed in section 212(a)(2) (including crimes of moral turpitude, drug trafficking, or prostitution), except if since such offense the person has been granted an INA 212(h) waiver or Cancellation of Removal for Certain Permanent Residents under INA  240A(a).

A permanent resident who is inadmissible under section 212(a)(2) is normally paroled into the U.S. as an arriving alien seeking admission and then placed in removal proceedings to respond to charges of inadmissibility under INA 212 (or charges of removability under INA 237). Parole allows a person, who may be inadmissible or otherwise ineligible for admission into the United States, to be paroled into the United States for a temporary period.

A permanent resident may request a stand-alone section 212(h) waiver — without reapplying for a visa or adjustment of status —  if he is presently requesting admission into the United States. This means he has to to be paroled into the country and referred to the Immigration Court as an arriving alien seeking admission. If the waiver (or other relief) is denied in removal proceedings, the permanent resident status is revoked and the Immigration Court may issue a removal order or a voluntary departure grant.

Who Qualifies for the I-601 [INA § 212(h)] Waiver?

You qualify for the I-601 waiver [§ 212(h) waiver] if you are one of the following:

1. An immigrant who has a U.S. citizen or permanent resident spouse, parent, son or daughter who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

Being eligible for the I-601 waiver does not necessarily mean you will get it.  As with other waivers available under the INA, §212(h) waivers are granted in the exercise of discretion. In addition to meeting the statutory requirements, you must present evidence showing the positive factors outweigh the negative factors in their case. Even if you are eligible for the waiver, the agency may still deny the request as a matter of discretion.

If you are convicted of a violent or dangerous crime, you must demonstrate “extraordinary circumstances,” such as national security or foreign policy considerations, or that the denial of admission would result in “exceptional or extremely unusual hardship.” Even if this higher standard is met, the agency may still deny the request as a matter of discretion.

Where Do You File An I-601 [INA § 212(h)] Waiver Application? 

The §212(h) waiver request is filed on a Form I-601, either with the USCIS office that is adjudicating the adjustment of status application, the U.S. Consulate that conducted the visa interview, or the Immigration Court (if you are in removal proceedings and filing for adjustment of status OR requesting admission as a permanent resident who was paroled into the U.S.).

The filing address for the I-601 application depends on whether you are:

An adjustment of status applicant who is filing or has already filed the I-485 application with USCIS;

An immigrant visa or K-3/K-1 nonimmigrant visa applicant who was found inadmissible by the U.S. Consulate at the visa interview; or

A VAWA self-petitioner seeking an immigrant visa or adjustment of status.

Direct filing addresses for the I-601 are available on the USCIS website.

***

Getting an I-601 waiver for criminal grounds involves more than just submitting the form and documents listed in the instructions. You must also show USCIS how you qualify for the waiver and deserve it as a matter of discretion. An experienced immigration attorney can help you maximize your chance for approval by presenting a legal brief and explaining how you meet the eligibility requirements.

For more information on what to submit with your application and why having an immigration attorney helps, read our related article, What should you to do get an I-601 waiver for criminal grounds? 

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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What should you do to get your I-212 Waiver?

Posted on October 24, 2015 | Comments Off on What should you do to get your I-212 Waiver?

Sections 212(a)(9)(A)(i) and (ii) of the Immigration and National Act state that foreign nationals who have been ordered removed may not be readmitted to the U.S. until they have stayed abroad for 5, 10 or 20 years. Having an aggravated felony conviction further subjects you to a permanent bar.

Sections 212(a)(9)(C)(i) and (ii) of the Immigration and National Act state that foreign nationals who illegally enter or attempt to illegally enter the U.S. after certain prior immigration violations are permanently barred.

When any of these inadmissibility bars apply to you, you need an I-212 waiver or Consent to Reapply (CTR) to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant.

What Must I Submit When Requesting an I-212 Waiver?

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates.

Although the I-212 waiver and Consent to Reapply are two terms that are used interchangeably, a request for a CTR does not always involve the filing of an official Form I-212 and application fee.

The Form I-212 instructions include a list of supporting documents you should submit with your waiver request.

There is no specific statutory standards to be met. Applications are considered on a case-by-case basis, and ALL relevant factors are considered. The approval of the I-212 application is at the agency’s discretion, which means the adjudicator will weigh the favorable and unfavorable factors in making a decision.

To obtain the I-212 waiver, you must establish the favorable factors outweigh the unfavorable factors.

Favorable factors include:

  • Close family ties in the U.S.
  • Unusual hardship to your U.S. citizen or lawful permanent resident relatives, yourself, or your employer in the U.S.
  • Your family responsibilities or intent to hold family responsibilities.
  • Length of lawful presence in the U.S. and the status you held during that presence.
  • Your respect for law and order.
  • Your good moral character, such as lack of criminal history.
  • Reformation and rehabilitation that make it unlikely the problem will occur again (e.g. repeated criminal activity that resulted in your deportation).
  • Eligibility for a waiver of other inadmissibility grounds.
  • The need for your services in the U.S.
  • Absence of significant undesirable or negative factors.
  • Likelihood that you will become a permanent resident in the near future.
  • Considerable passage of time since you were deported.

Unfavorable factors include:

  • Lack of close family ties or hardships.
  • Serious or repeated violations of immigration laws or willful disregard of other laws.
  • Bad moral character, including criminal history.
  • Likelihood that you will seek U.S. welfare or become a public charge.
  • Poor physical or mental condition (unless there is a need for treatment in the U.S., which would be a favorable factor).
  • Unauthorized employment in the U.S.
  • Your admission would be contrary to the welfare, safety, or security of the U.S.
  • Recent deportation.

Personal declarations from you or legal arguments from your lawyer are not enough. You must provide objective and credible evidence, including:

  • Affidavits from third parties attesting to unusual hardships, your good moral character, and other positive factors.
  • Evidence of family ties in the U.S., such as birth certificates and marriage certificates.
  • Medical reports, psychological evaluations, and other records showing unusual hardships to you, your relatives, or others if you are not admitted to the U.S.
  • Evidence of the financial, emotional and psychological impact of family separation.
  • Police clearance reports showing you lack a criminal history.
  • Evidence of rehabilitation and reformation, if you have prior criminal convictions.
  • Employment records and other evidence of your professional qualifications and work experience.
  • Articles and reports on the conditions of the country where you and your family would live if you were not admitted to the U.S.

Generally, your I-212 is more likely to be granted if you are the beneficiary of an approved family or employment-based petition or you are otherwise eligible for a visa,  you have only one removal order, you lack a criminal record, you did not commit serious and repeated immigration violations, and you demonstrate unusual hardships to your family or employer in the U.S. if you are not admitted.

Does Hiring an Immigration Attorney Make a Difference? 

You may file the Form I-212 application on your own. But hiring an experienced, skilled and diligent lawyer provides several advantages, such as:

1.  Avoiding unnecessary expenses and delays. The  immigration lawyer can help you determine whether you need an I-212 waiver in the first place. You might not actually need an I-212 waiver for various reasons, including:

  • The 5, 10 or 20 year bar under INA section 212(a)(9)(A) has expired.
  • You were allowed to withdraw your application for admission at the U.S. port of entry or border and you departed the U.S. within the time specified.
  • You were stopped and refused admission at the U.S. port of entry or border, but no expedited removal order was issued.
  • You were refused admission as an applicant under the Visa Waiver Program.
  • You were paroled into the United States after you accrued more than one year of unlawful presence in the U.S. and left, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 3-year/10-year unlawful presence bar and require a separate Form I-601 waiver.]
  • You were paroled into the United States after you were ordered removed from the U.S, such that you are not inadmissible under INA section 212(a)(9)(C). [NOTE: You might, however, still be inadmissible under the 5, 10, or 20-year bar under INA section 212(a)(9)(A) and require a Form I-212 for that bar.]
  • You received voluntary departure from an immigration court and you departed the U.S. during the voluntary departure period.
  • You are applying for I-485 adjustment of status as a U nonimmigrant.

The immigration lawyer also helps ensure that your I-212 waiver application is filled out completely and filed properly with the right immigration agency.  Without a lawyer’s guidance, it can be easy to overlook critical questions and difficult to determine  where you should submit your I-212 application. The lawyer can prevent unnecessary delays, including rejection notices.

2. Determining whether you are inadmissible on other grounds and whether these grounds can be waived or not.  The immigration lawyer will review the immigration court records (including Notice to Appear in Removal Proceedings and court order) or Customs & Border Protection records (including Notice of Expedited Removal) to determine the reasons for your removal and the duration of the bar.

A lawyer can verify  whether you need an I-601 waiver (for immigrant visa) or an I-192 waiver/INA section 212(d)(3)(A)(ii) waiver (for nonimmigrant visa) as well. While the I-212 covers grounds of inadmissibility under INA sections 212(a)(9)(A) or (C), the I-601 waiver or 212(d)(3)(A) waiver is necessary for other grounds, such as immigration fraud and misrepresentation, the 3-year/10-year bar due to previous unlawful presence in the U.S., health conditions, and criminal convictions.

While eligibility requirements for the 212(d)(3)(A) are relatively flexible, they are strict for the I-601 waiver.  Unlike 212(d)(3)(A) waiver applicants, I-601 waiver applicants must have a qualifying relative (e.g. U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if they are not admitted to the U.S.

In addition, a lawyer can advise you on whether you are inadmissible for reasons that cannot be waived at all. These include a determination that you made a false claims to U.S. citizenship, a ruling that you filed a frivolous asylum application, a drug conviction after age 18 (except if it was for simple possession of less than 30 grams of marijuana for personal use), and a finding that you entered into a sham marriage to a U.S. citizen for immigration purposes.

3. Increasing the likelihood that your waiver application will be decided favorably (and in some cases, expeditiously). 

An attentive lawyer will strive to understand the full details of your case, including your family responsibilities; the hardships you, your family and/or employer would suffer if you are not admitted to the U.S.; your professional qualifications; and the conditions in your home country.

A skilled and experienced lawyer will advise you on the documentary evidence and written testimonials you must submit to support your waiver request. He or she will also present a legal brief describing how the positive factors outweigh the negative factors and why you deserve the waiver as a matter of discretion, under the law.

A diligent lawyer will also do any necessary follow-ups to obtain an approval, and request expedited processing when appropriate.

***

To present the strongest I-212 waiver request you need to do more than just submit the form and documents listed in the instructions.  True success in getting an I-212 waiver grant is more likely when you have experienced counsel.

Consult an immigration attorney at least once and, preferably, hire a reputable one to help you prepare an approvable I-212 application.

For more information on the inadmissibility grounds that require an I-212 waiver, the limitations of the waiver, and when and where you may file for it, read our related article, When do you need an I-212 Waiver (and how do you get it)?

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Immigration Consequences of Criminal Offenses: Myths & Facts

Posted on September 28, 2015 | Comments Off on Immigration Consequences of Criminal Offenses: Myths & Facts

When a person is charged with a crime, he and his criminal defense attorney are often most concerned with minimizing the penalties. The defendant might give up his right to a trial and enter a guilty plea or no-contest plea to a less serious charge, in exchange for the dismissal of other charges or a reduced sentence. But the U.S. immigration consequences can be far more serious than the jail time, fine, probation or other more direct consequences of the conviction.

Criminal convictions can lead to a non-citizen being deported from the United States, denied entry (or re-entry) into the United States, and stripped of immigration benefits, including eligibility to become a permanent resident or a naturalized citizen. The immigration consequences continue long after the person has already served his sentence.

If you are a foreign national who wishes to visit, immigrate to, or stay in the United States, you need to know the myths surrounding criminal offenses and their immigration consequences. The most common include:

Myth #1:  The “dismissal” of my criminal case, after I have met certain conditions, means I have no “conviction” under U.S. immigration law. 

Fact:  A conviction could still exist under federal immigration law even when a dismissal of the case means there is no conviction under state law.

You may qualify for a pre-trial intervention, first offender, or diversion program, in which counseling rather than punishment is emphasized. Some states and programs do not require defendants to enter a guilty plea or no-contest plea to qualify for the program. Prior to entering a plea, the person agrees to complete probation, anger management, group therapy, substance abuse treatment or other type of program. If the person successfully completes the program, the charges are dropped or the case is dismissed.

But when you must admit guilt or you are found guilty before the pre-trial intervention, first offender, or diversion program is imposed, this amounts to a conviction under federal immigration law. In this situation, a dismissal of the case — after you complete the program — does not wipe the slate clean for immigration purposes.

Immigration law defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.

“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is actually served or suspended is irrelevant.

Unless a criminal case is outright dismissed, is stricken, or is not prosecuted — without any admission of guilt or penalty imposed — a criminal conviction exists under immigration law.

Myth #2:  An expungement (or sealing) of my criminal record means it is erased as if it never existed. 

Fact:  Generally, an expungement seals or deletes the criminal record in the local court and (perhaps) the state police’s databases.  Each state uses its own approach and procedures.  In most cases, a full expungement treats the offense as if it never occurred. For immigration purposes, however, an expungement does not erase the conviction.

Fingerprints taken when you were arrested remain in the FBI or federal databases. Immigration officials may still see or request expunged records for certain purposes.

When you file for a nonimmigrant visa, a visa waiver (under ESTA), permanent residence or U.S. citizenship, you are asked about arrests, charges and convictions. An expunged or sealed record does not make the arrest, charge or conviction go away for immigration purposes.

As part of a Form I-485 application for adjustment to permanent residence, Form I-90 application for replacement of green card, or Form N-400 application for naturalization, you must provide your fingerprints at a biometrics appointment.  A background check, including review of criminal records in the FBI database, will be conducted before you receive a decision on your application.

Your criminal record will normally turn up in the background check. If an immigration officer sees that you have a record, and you stated that you had no arrests, charges or convictions, he may deny your application based on fraud or willful misrepresentation of material fact to gain immigration benefits.

Immigration officials can sometimes obtain expunged records from the court. But you have the burden to produce court-certified records when you apply for certain immigration benefits, such as permanent residence, a new green card, or naturalization. Therefore, it’s best that you obtain the court-certified records before you seek an expungement. Otherwise, you might need to get the record unsealed to allow continued processing of your application.

Myth #3:  A relatively minor offense, such as a misdemeanor or a conviction resulting in a sentence under 1 year, will not cause any immigration problems.

Fact: A conviction does not necessarily disqualify a person from obtaining a visa, permanent residence, naturalization, or other immigration benefits. The  only situation in which a single conviction is an automatic and permanent bar to entering the U.S. is when the conviction is for an aggravated felony, and you have been previously removed due to the conviction.

In general, misdemeanor offenses carry less serious consequences than felony offenses. A sentence of less than one year can save the person from being deported without a viable defense. But the nature of the offense, type of conviction, and the maximum potential penalty are additional factors to consider.

Even non-violent, relatively minor misdemeanor offenses under state law can be classified as a felony or even an aggravated felony under federal immigration law. The Immigration and Nationality Act does not distinguish between felony and misdemeanor crimes. Rather, crimes are categorized by the type of conduct involved.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for asylum, cancellation of removal, certain waivers of inadmissibility, and voluntary departure. Section 101(a)(43) of the Immigration and Nationality Act provides a list of offenses that are deemed aggravated felonies. They include:

  • murder
  • rape
  • sexual abuse of a minor (including statutory rape)
  • controlled substance trafficking
  • illicit trafficking in firearms or destructive devices
  • money laundering of more than $10,000
  • fraud or tax evasion involving a loss that exceeds $10,000
  • a crime of violence with a sentence of at least one year
  • a theft offense or burglary offense with a sentence of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year

While a reduced sentence under 1 year might help you avoid an aggravated felony charge, this only applies to a narrow group of convictions (e.g. theft and violent crimes).  There are various types of convictions that present immigration problems, no matter the sentence.

An aggravated felony is not the only crime that carries serious immigration consequences. Controlled substance violations, firearms offenses,  domestic violence, stalking, violation of protective orders, child endangerment, and child abuse are especially problematic.

Crime Involving Moral Turpitude

A Crime Involving Moral Turpitude (CIMT) often causes major immigration problems as well. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.

Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

A noncitizen is inadmissible to the U.S. if he is convicted of – or admits to committing – one CIMT (other than a political offense), unless he qualifies for:

(1) the petty offense exception, where the person committed only one CIMT ever, the CIMT has a potential sentence of a year or less, and a sentence of six months or less was imposed ; OR

(2) the youthful offender exception, where the person committed a single CIMT while under age 18, and at least five years have passed since the conviction and release from jail.

A noncitizen is deportable if convicted of a CIMT (other than a political offense) committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed. The maximum sentence possible is the determining factor. For example, if the CIMT occurred within five years of the person becoming a lawful permanent resident, he is still removable from the U.S. if he could have been sentenced for 365 days or more. It doesn’t matter whether the actual sentence was less than 365 days or was suspended upon completion of probation.

A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. The only two exceptions are if the offenses are “purely political” or arose in a “single scheme of criminal misconduct” (i.e. the very same incident).

To be admitted to the U.S. as a permanent resident or to prevent removal from the U.S. as a result of a CIMT, the person must qualify for certain relief, such as a 212(h) waiver in conjunction with adjustment to lawful permanent resident status.

Controlled Substance Violations

Section 212(a)(2)(A) (i)(II) of the INA states a person is inadmissible if he violated (or conspired or attempted to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, as defined in section 802 of Title 21 (Controlled Substances Act). To be subject to this permanent bar, the person must be convicted of or admit to the essential elements of a controlled substance violation. This includes simple possession or use of marijuana or any other drug listed in Title 21, section 802.

The 212(h) waiver is available only when the intended immigrant has one controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish).

Multiple Convictions

A noncitizen is inadmissible if convicted of two or more crimes (other than purely political offenses) – regardless of whether the conviction arose from a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the crimes involved moral turpitude –  for an aggregate confinement totaling five years or more.

Criminal Records in general

In addition, any criminal record can make it much harder for you receive certain immigration benefits. For example, a disorderly conduct conviction or multiple DUI offenses are not automatic or conditional bars to naturalization. But they can make it harder for you to establish good moral character and easier for USCIS to deny your naturalization application – especially if they occurred within the statutory period (generally 3 to 5 years before you file your Form N-400.)

Myth #4: My criminal record will not matter if I have been a permanent resident for many years. 

Unconditional permanent resident status does not expire even when your 10-year green card is no longer valid.  But it can be revoked due to certain criminal convictions. As a permanent resident, you may also be denied-re-entry to the U.S. or be placed in removal proceedings on criminal-related grounds.

Although lawful permanent residents have more rights and privileges than undocumented immigrants and foreign nationals in non-immigrant status, only U.S. citizens are fully protected from the immigration consequences of criminal convictions.

Myth #5: Foreign convictions do not count for U.S. immigration or travel purposes.

U.S. immigration authorities consider a foreign conviction to be a “conviction” in the immigration context if the conviction resulted from an offense deemed to be criminal by U.S. standards. Federal U.S. standards on sentencing are also used to determine whether the foreign conviction is a felony or a misdemeanor, regardless of the sentence imposed in the foreign jurisdiction.

The U.S. also does not recognize foreign pardons.  Only full and unconditional U.S. pardons for a U.S. conviction – granted by the highest executive authority – removes deportability and inadmissibility under INA 212(a)(2)(A)(i)(I) (crime involving moral turpitude).  Foreign pardons do not county for U.S. immigration or travel purposes.

The Form I-485 application specifically asks you to disclose whether you have been arrested, cited, charged, convicted or sentenced for crimes outside the U.S. In the naturalization context and in visa applications, you are also expected to list criminal offenses that occurred outside the U.S., regardless of whether they resulted in a conviction or guilty plea.

Learn about the immigration consequences of a criminal charge or conviction before you enter a plea, leave the U.S., or apply for immigration benefits

In 2010, the U.S. Supreme Court ruled in Padilla v. Kentucky that the 6th Amendment right to counsel requires criminal defense attorneys to provide advice about the immigration consequences of a conviction to their noncitizen clients.  This decision, however, does not apply retroactively to pre-Padilla cases.

The immigration consequences depend on the elements of the crime, the nature of the offense, the potential sentence, the actual sentence imposed, and whether the person has other convictions.

Deportation, denial of entry to the U.S., and separation from families often have far more lasting effects than the sentence imposed.  Certain criminal convictions lead you into removal proceedings after you complete your jail sentence, or when you apply for a green card or for U.S. citizenship. You can also be denied re-entry to the U.S. as a permanent resident or valid visa holder on crime-related grounds.

You need to know how a conviction or sentence affects your immigration status before you enter a guilty plea, leave the U.S., or apply for immigration benefits including naturalization. Make sure to seek advice from an attorney who is experienced in the intersection between the two complex areas of immigration law and criminal law.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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