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Criminal Waivers

When your past comes back to haunt you. 

Even if you’re married to a US citizen, you may not be able to obtain your green card if you have a crime in your past.

Common Criminal Bars to Green Cards

* Crime of Moral Turpitude (“CMT”). Even a misdemeanor can be considered a crime of moral turpitude. CMTs usually refer to theft crimes but can cover other types of crimes as well that courts have typically held to be lacking moral character including assault with intent to rob, statutory rape, aggravated DUI (driving under the influence), stalking, arson, blackmail, robbery, etc. 

* Domestic Violence 

* Aggravated felonies.

* Prostitution

* Drugs  (ex: possession of cocaine for personal use qualifies, even admitting to the crime but no conviction can count)

Marriage Fraud

* Alien Smuggling

* Convictions of two or more crimes, if the actual period of confinement (imprisoned) was five years or more combined

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Waivers for Crimes for Non-Permanent Residents

You may be eligible for a WAIVER, to allow you to become a green card holder despite the criminal act in certain circumstances.  

212(h) Waiver 

The 212(h) waiver is available to those applying for green cards based on a family-based or VAWA (abused spouse) self-petition. The 212(h) Waiver waives . . . 

* Crimes of Moral Turpitude;
* Single offense of possession of Marijuana, 30 grams or less;
* Multiple convictions where total sentence of all the crimes combined was 5 years or more;
* Prostitution 
* Commercial Vice
* Serious criminal offenses involving a grant of immunity

To be successful, the immigrant must show for a 212(h) waiver that either

    1. the criminal activities the immigrant was convicted of happened more than 15 years before their application for adjustment of status (the green card process in the US) and approving the case would not be contrary to national welfare, safety or security, and that the person has been rehabilitated; OR
    2. the immigrant is the spouse, parent, son or daughter of a US citizen or permanent resident, that qualifying relative would suffer extreme hardship if the immigrant’s admission into the US was denied (i.e., the waiver case was denied); OR
    3. if waiving prostitution ground, prostitution must be sole basis of inadmissability, the immigrant has been rehabilitated, and approving the case would not be contrary to national welfare, safety or security; OR
    4. be a VAWA (abused spouse) self-petitioner

And . . .  the immigrant must prove that he or she “deserves” that the waiver be granted – because the waiver is discretionary. How is the person have strong moral character despite their criminal acts?   In removal proceedings, just because an offense is waivable doesn’t mean that the immigration judge will make a favorable discretionary grant, especially if the offense involves a “violent or dangerous” crime unless you can prove that granting would harm national security interests or your USC spouse, parent, or child would suffer exceptional and extremely unusual hardship, a very difficult standard to meet.

You are also ineligible for a 212(h) waiver based on moral character grounds if you ever committed, attempted to commit, conspired to commit, or actually admitted to the elements of the crime of murder or torture.

Nonimmigrant Visa Waivers for temporary visa holders (H-1B, E, Ls, B-1/2, F-1, etc)

The NIV Waiver allows temporary work or visiting visa holder applicants to waive many grounds of inadmissability, for the potential duration of their allowed temporary stay in the US if CIS believes that the applicant’s crime is not so serious,  does not pose a risk of harm to society if s/he is allowed to enter the US temporarily, and a persuasive reason as to why the applicant needs to enter the US now. 

For example, this can be used  by H-1B visa holders who overstayed their I-94 or lied on their visa applications in prior visits when applying for new H-1b status or by a visitor’s visa applicant who overstayed a prior visit, although this is usually more difficult to get approved. 

Smuggling Waiver

This waiver waives smuggling for an immigrant applying for a green card who previously smuggled his or her spouse, parent, or son or daughter into the U.S.  who had that family relationship at the time the smuggling occurred. Smuggling can apply to those who paid a coyote to bring over a family member and did not physically engage in the smuggling act.

How does the traditional criminal waiver process work?

Here’s Attorney Heather’s short presentation explaining the process and what to expect for a traditional I-601 waiver: 

Preparing For the Road Ahead: Understanding the Process & Timing in Traditional I-601 Waiver Cases”

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  Attorney Heather’s Videos on Criminal Immigration:

New Zealand National Wins Criminal Waiver

Crimes and Immigration: What Happens If We Don’t Disclose Prior Convictions or Prior Entry? 

          Do Crimes Before 18 Count for My Immigration Case?

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Crimes that May Get You Deported

Even if You are a Lawful Permanent Resident

Aggravated felonies (can include . . . . but there are many more)

 Illegally Re-entering US (Federal Conviction)
Alien Smuggling
Witness Bribery
Crimes of Violence
Drug Trafficking
Failure to appear to serve a prison sentence
Using or Creating False Documents
Trafficking in Firearms
Forgery
Fraud or Deceit if the injury to the victim exceeds $10,000
Murder 
Rape
Tax Evasion
Theft (if term of prison is at least 1 year)
Receipt of stolen property

Crimes of Moral Turpitude

*  if you have been convicted of two or more CMTs after entering the US on a visa (not just after becoming a permanent resident!)  OR

* One conviction of CMT committed within five years after you became a permanent resident when the crime has a maximum potential setence of one year or more, even if you were only sentenced to time served!

Drugs

Besides the aggravated felony ground above for trafficking, a permanent resident can be deported for:

* being a drug addict or abuser since s/he became a permanent resident, even if never been convicted of any drug crime!  
* trafficking in a controlled substance is also a CMT
* Simple Possession of any controlled substance unless it one conviction for 30 grams or less of marijuana

Crime of Violence 

* Permanent residents are deportable for one conviction involving a violent crime against a person that immigrant had a domestic relationship wife, if convicted after September 30, 1996.
* Even misdemeanors can be considered crimes of violence and trigger deportability!
* Crimes of Violence can include domestic violence, residential felony burglary, felony sexual battery, battery or assault, violating a protective order, and corporal injury to a spouse, among others.
* Certain crimes of violence can also be considered Crimes of Moral Turpitude and aggravated felonies – other grounds of deportability.

Child Abuse, Neglect or Abandonment if committed after September 30, 1996

Prostitution

* Deportable convictions include those for Running Prostitution Businesses, Engaging or Soliciting for Prostitution, and Paying for Prostitution in certain states.
* Can also be an aggravated felony in certain circumstances 

 Lewd Conduct in Public & Indecent Exposure

 * Deportable if considered a crime of moral turpitude or involved exposure or conduct towards a child.

Failure to Register as a Sex Offender

Theft

Firearms

* May also be deportable Crimes of Moral Turpitude, Crimesof Violence, and Aggravated Felony offenses depending on the conviction, pleas, and record of conviction
* Can include exhibiting weapon with threatening manner, assault or battery with a firearm that is likely to cause great bodily injury, discharging a firearm in inhabited building, negligently discharging a weapon, and intent to assault while possessing a deadly weapon, among others. 

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 Waivers for Crimes for Permanent Residents 

Some of the possible 212(h) waiver scenarios include:

Stand-Alone 212(h) waiver for permanent residents (green card holders) in removal proceedings.

These may be possible for green card holders who are returning to US from abroad (called “arriving aliens”) who are now in removal proceedings because of a crime committed after green card issuance.  Green card holders do not have to reapply for a green card (new adjustment application) but can file just the 212(h) waiver by itself in removal proceedings.  It may be more difficult, depending on where you live in the US, to be able to file a stand-alone 212(h) waiver if you never departed the US and have been placed in removal proceedings after committing a deportable crime.

212(h) Waiver with re-adjustment in removal proceedings.

It is possible for a green card holder who wants to re-adjust (apply for a new green card) in removal proceedings with pending deportability charges, to also apply for a 212(h) waiver at the same time as applying for a new green card.

To be successful with a 212(h) waiver, must show that either

  1. the criminal activities the immigrant was convicted of happened more than 15 years before their application for adjustment of status (the green card process in the US) and approving the case would not be contrary to national welfare, safety or security, and that the person has been rehabilitated; OR
  2. the immigrant is the spouse, parent, son or daughter of a US citizen or permanent resident, that qualifying relative would suffer extreme hardship if the immigrant’s admission into the US was denied (i.e., the waiver case was denied); OR
  3. if waiving prostitution ground, prostitution must be sole basis of inadmissability, the immigrant has been rehabilitated, and approving the case would not be contrary to national welfare, safety or security

Additional requirements for green card holders: 

4. has lawfully resided in the United States for at least  7 years before removal proceedings were initiated and 

5. not been convicted of an aggravated felony since becoming an green card holder (with special exceptions – consult a lawyer!).

Still . . .  the immigrant must also prove that he or she “deserves” that the waiver be granted – because the waiver is discretionary. How is the person have strong moral character despite their criminal acts? 

You are also ineligible for a 212(h) waiver based on moral character grounds if you ever committed, attempted to commit, conspired to commit, or actually admitted to the elements of the crime o murder or torture.

 WARNING: This is a very complicated area of the law, depending on how courts define “admission”, “admitted” and whether someone is being charged as an “arriving alien” and whether it is more beneficial to be charged with a deportability ground as opposed to a ground of inadmisability (ground that bars admission back into the US as an arriving alien). Consult an experienced immigration attorney about the particular facts of your case for the right advice. When certain crimes happened, when you tried to re-enter, what state you reside in, etc. can all have consequences on your immigration options.

 Former INA 212(c) Waivers 

Former INA 212(c) Waivers are available to permanent residents to waive non-firearm related aggravated felonies  that occurred before  April 24, 1996, with limited exceptions. The permanent resident had to be a permanent resident for at least 5 years, has lived continuously in the US for 7 years after having been admitted into the US on any type of visa or status.  

The Supreme Court just struck down the Board of Immigration Appeals’s restrictive view of 212(c) relief so this area is constantly evolving and many people who were ineligible for 212(c) relief may be eligible now. 

When a Waiver is Not Available for the Conviction, Other Relief May Be: 

* Asylum, Withholding or CAT (Convention Against Torture)

* U Visas for Victims of Crime

* T Visas for Trafficking Victims 

* Cancellation for Lawful Permanent Residents

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Frequently Asked Questions About Crimes & Immigration:

* Will a foreign conviction count for my immigration case? 

Yes. If you have been arrested or convicted for any crime anywhere in the world, CIS will take it into account when determining if you have triggered a ground of inadmissability (for applying for a green card) and/or deportability (if you either a non-green card holder or a permanent resident).  The difficulty can be trying to argue whether the elements of a foreign conviction fall within a barred type of crime for US immigration purposes. Also, f the criminal conduct in the foreign country would not have been punishable as a crime under U.S. law, then it will not trigger an immigration problem as it would not be considered a “crime.”  It’s important to have your criminal transcripts, docket, and records from your prior criminal attorney available for your immigration attorney to review against US immigration triggers.

* I committed a crime when I was under the age of 18. I was told my record has been sealed. Does this crime count for my immigration case? 

Crimes committed under the age of 18 are usually not considered convictions under federal immigration law. However, if the crime would have been an aggravated felony or seriously injured another person, for instance, this can be weighed by CIS in determining if you should be granted any type of “discretionary” benefit later (i.e., whether you deserve the benefit, based on your moral character which includes your past behavior and convictions).  Adjustment of Status – the green card application in the US, for instance, is considered a discretionary application. Always consult a competent immigration attorney about all crimes in your past. Failure to disclose crimes, even under the age of 18, could also lead to CIS finding of misrepresentation (that you lied or overtly concealed it), which can be a lifetime bar to any immigration benefit for those who do not have a US citizen spouse or parent to rely on to make a showing of extreme hardship to for the limited waiver. Be careful!   

* My crime has been expunged based on good behavior. Does this crime still count for immigration purposes? 

Generally, yes. Certain first-time simple possession of drug crimes did not count in certain circumstances but only in the 9th Circuit. Now, this ruling has been overturned so even a simple possession crime can bar you from a green card.  It is always wise to speak with a competent immigration attorney who can work with your criminal attorney to determine if a loophole, possibility to vacate the conviction on the merits, or other post-conviction relief is possible to eliminate a damaging crime to your immigration case. 

* I am currently being charged with a crime. My public defender told me that I should plead no contest to avoid jail time. Should I do this? 

You should always consult a competent immigration attorney about what crime(s) you are considering making a “plea” to in an effort to avoid jail time before you agree to a settlement with the District Attorney. Many public defenders are overworked, understaffed and underpaid and cannot take the time to keep up on the immigration consequences of certain pleas. To public defenders, they want to keep you out of jail as their main priority. Immigration attorneys will look at keeping you in the US and the long term effect of your plea.  

WARNING: Crimes can have severe immigration consequences. Always consult a licensed, experienced immigration attorney about your options. Do not rely on this basic information as legal advice or to take any action in your case with the government or CIS; this area is constantly evolving and changing with case law, regulations, and statutory revisions. 

 Attorney Heather’s Videos on Criminal Immigration:

New Zealand National Wins Criminal Waiver

Crimes and Immigration: What Happens If We Don’t Disclose Prior Convictions or Prior Entry? 

          Do Crimes Before 18 Count for My Immigration Case?