Green Card Applicants with Criminal Records
Whether you’re applying for a marriage-based green card from inside the United States or from abroad, a large portion of the application will be dedicated to questions about your criminal history.
If you don’t have a criminal history, you don’t have to worry. But for many applicants, the criminal history section of the green card application is stressful, as a police record of any kind could be a reason for denial.
As part of the marriage-based green card process, U.S. Citizenship and Immigration Services (USCIS) will check for criminal records for both the U.S. citizen or green card holder sponsoring his or her spouse, and the spouse applying to receive a green card. This article focuses on criminal records for the spouse seeking a green card. (For more information about the potential problems if the sponsoring spouse has a criminal record, see this article.)
Criminal History: The Basics
When you apply for a green card, USCIS wants to know about every interaction you’ve ever had with law enforcement, both in your home country and in the United States. The only exception is traffic violations—if the only citation you’ve ever received was for a minor traffic issue, you don’t need to mention it. For everything else, you do.
When you’re filling out your green card application, it’s important to be honest and provide sufficient information to USCIS. You should mention every time you were cited, arrested, or charged with a crime, even if the charges were later dismissed or if your criminal record has been expunged.
Beware: Lying on an immigration form can make you ineligible for a green card—even if the incident you were trying to hide would not have made you ineligible on its own!
Remember, though, that not all criminal histories will make it impossible to get a green card. According to U.S. immigration law, there are three types of criminal convictions that will make you inadmissible, meaning you can’t receive a green card. They are:
- aggravated felonies
- crimes involving “moral turpitude”
- crimes involving illegal drugs
Each of these categories is explained in greater detail below.
Even if you do have one of these crimes in your record, it is sometimes possible to get a “waiver of inadmissibility” and receive a green card. Criminal records do often complicate green card applications, but they don’t necessarily lead to a denial.
What Counts as a “Conviction”?
Generally speaking, the definition of a “conviction” under U.S. immigration law is broader than the definition of conviction under U.S. criminal law.
“Conviction” in the immigration context refers to any outcome in which you were either found guilty by a court or admitted guilt through a plea bargain—even if you were told there would not be a criminal conviction on your record. For example, if you were arrested on a drug charge and participated in drug treatment as part of a diversion program, you might have no criminal record in the state where it happened, but still have a “drug conviction” on your record for immigration purposes.
What’s an “Aggravated Felony”?
Under U.S. immigration law, being convicted of an “aggravated felony” will make you ineligible to receive a green card. While “aggravated felony” sounds like a very serious crime, the term is slightly misleading. What constitutes an “aggravated felony” for immigration purposes has little to do with what is considered “aggravated” or a “felony” under state or federal criminal laws.
Instead, for green card seekers, “aggravated felonies” are a specified list of crimes that the United States Congress has decided will make an immigrant inadmissible to the United States. Some crimes considered to be “aggravated felonies” for immigration purposes might be misdemeanors—or not even crimes at all—under state or federal criminal law. Some examples of these “aggravated felonies” include the following:
- Drug trafficking
- Filing a false tax return
- Sexual abuse of a minor (this includes, for example, consensual sex between a 21-year-old and a 17-year-old)
What’s a “Crime of Moral Turpitude”?
Another type of criminal conviction that could make you ineligible for a green card is for a “crime of moral turpitude.” This generally refers to any crime committed with “evil intent”—that is, an intent to defraud someone or to inflict bodily harm. This is a very subjective category, and whether a conviction is a crime of moral turpitude can depend on if USCIS and the immigration courts have previously decided that that crime is a crime of moral turpitude.
Crimes of moral turpitude include the following:
- Animal abuse or fighting
However, the following crimes are, in most circumstances, not considered crimes of moral turpitude:
- Simple Assault
- Breaking and entering
What’s a Relevant Drug Crime?
Any drug-related criminal conviction can make you ineligible to receive green card, even if the conviction was only for possession or for drug use. The only exception stated in the Immigration and Nationality Act (INA) is if you have only one drug conviction and it was for possession of 30 grams or less of marijuana for your own personal use—and even then, you would still need to apply for a waiver. All other drug crime convictions will likely make you ineligible for a green card.
What About Criminal Convictions in Another Country?
If you have a record of criminal convictions in a foreign country, there are two possibilities:
- The criminal conviction under the foreign country’s laws is equivalent to an “aggravated felony”, “crime of moral turpitude”, or “drug crime” under U.S. immigration law. In that case, the standards of inadmissibility (and possible waivers) are the same.
- The criminal conviction under the foreign country’s laws is not equivalent to an “aggravated felony”, “crime of moral turpitude”, or “drug crime” under U.S. immigration law. Such an argument must be made clearly and persuasively as part of the green card application, and there is no guarantee that USCIS will agree.
Answering Questions About Criminal History
If you’re applying for a green card from inside the United States, you’ll need to answer a number of questions about criminal history on Form I-485 (the “Application to Adjust Status”). If you’re applying for a green card through a U.S. embassy consulate from outside the United States, you’ll need to answer the same questions on Form DS-260 (the “Immigrant Visa Application”). (Here is a general overview of both processes.)
There are approximately 20 questions related to criminal history. Essentially, they ask whether or not you have any kind of criminal history, and whether or not you intend to commit any kind of crime in the future. Expect the questions to focus on issues related to drugs, human trafficking, money laundering, and prostitution.
It’s important to read each of these questions carefully, especially if you do have any kind of criminal history. Remember that these questions refer to your criminal history both in the United States and abroad. If you have a criminal history in your home country or in any other country, you must disclose it in the appropriate place when applying for a green card.
If your answer to any of these questions is “yes,” you’ll need to provide additional information. You should provide details about when and where you were cited, arrested, charged, or convicted, as well as the exact citation or charge and the final disposition of the case—in other words, how the case was ultimately resolved.
It’s important to back up this information with official documents to prove that you are accurately describing your criminal record. This could include a statement from the police department where you were arrested or cited, copies of any charges made against you, discharge or expungement records, and records showing the final disposition of your case. An arrest or even a charge (that was ultimately dismissed) will not make you ineligible for a green card. However, it is very important to be candid about all arrests or charges in your past to avoid being found ineligible for a green card based on lying to the government.
Getting a Waiver
In some cases, you can apply for a “waiver of inadmissibility” to excuse your criminal history, as long as you can show that your admission to the United States would not endanger anyone, and that your U.S. citizen or green card holder spouse would experience “extreme hardship” if you are not allowed to live in the United States.
There are some crimes that cannot be excused with a waiver. There are no waivers for drug convictions, unless the only drug conviction is for simple possession of less than 30 grams of marijuana for personal use (see above). Waivers are also strictly impossible if you have been convicted of murder or torture.
If you’re applying for a green card from inside the United States, you can file your waiver request either with your green card application, while you’re waiting for your green card application to be processed, or at your green card interview. The most expeditious option is to file your waiver request with your green card application, so the request can be processed at the same time as your green card application. If you’re applying for a green card from outside the United States, you must apply for a waiver during your green card interview at the U.S. embassy or consulate.
While a criminal record does complicate your green card application, it may not necessarily lead to a denial. Preparing a thorough and accurate green card application is all the more essential if you have a criminal history. If you have any doubts about how your criminal record could affect your green card application, you should contact an attorney or government-approved nonprofit. (See our immigration resources page for details.)
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