Green Card and Criminal Convictions
Waivers are necessary when a criminal record would otherwise have a disastrous impact to those seeking immigration benefits in the United States. Inadmissibility means that you will be denied a U.S. visa or lawful permanent residence (Green card), unless the law provides an opportunity for you to apply for legal forgiveness of the crime committed, which is called “waiver“.
Waivers will depend on the nature of the crime itself, as well as any subsequent rehabilitation or strong connection to family members who are U.S. citizens or permanent residents.
If you have been convicted of minor crimes, you may still be able to obtain a Green card. However, if you have committed a serious or violent crime, you are likely to be inadmissible and deportable. The grounds of inadmissibility are found in Section § 212(a) of the Immigration and Nationality Act (INA) and include:
- Crime Involving Moral Turpitude (CIMT) like fraud, money laundering or theft. CIMT includes aggravated felonies, described in the INA § 101(a)(43), like murder, rape, or sexual abuse of a minor.
- CIMT of illegal possession of controlled substances, such as marijuana, cocaine, or heroin.
- Fraud or misrepresentation in obtaining a Visa to enter the United States, or obtaining any other immigration benefit.
- Illegal presence in the United States, which can lead to the 3-year and 10-year bans.
People convicted of a CIMT may still benefit of the “Petty Offense” exception if:
- the crime was committed as a minor
- in some cases of purely political offenses
- the maximum penalty for the offense shall not exceed one year in prison and the offender was not sentenced to more than 6 months in prison.
An application for Waiver of Grounds of Inadmissibility (Form I-601) is a request for legal entry to the United States or for Adjustment of Status to Lawful Permanent Resident, made by an applicant that is not admissible to the United States for one or more of these grounds.
Form I-601 may be filed and submitted to the Consular Officer or the U.S. Citizenship and Immigration Service (USCIS), depending on the cases.
If the application is approved, USCIS will send a notice to the applicant, and will later notify the proper consulate for issuance of the visa. Denials are in writing notified and may be appealed.
Provisional Waiver of Unlawful Presence
The U.S Citizen spouse of an inadmissible immigrant may file with the USCIS a Provisional Waiver (Form I-601A).
Form I-601A is an application for a provisional unlawful presence waiver under Immigration and Nationality Act Section 212 (a)(9)(B), and may be granted if the relative is living in the United States. Thus, relatives will not have to live apart while the petition is adjudicated (generally, it takes not less than 6 months).The application must include clear and substantial evidence that the parent, spouse, or child will suffer extreme hardship if his or her relative is not granted the waiver.
Foreign convictions can be even harder to determine and will need to be strongly compared to U.S laws. You need to hire an experienced immigration attorney to prepare and file the waiver application. Waivers and grounds of inadmissibility are one of the most complex areas of immigration law.