Waivers For People With Criminal Records
Portions of the content on this page are available as public information on the USCIS website.
If your immigration matter requires a waiver due to a criminal record, talk to an attorney at David Hirson & Partners, LLP, for help.
Criminal offenses committed domestically in the United States or abroad may have immigration consequences. If you have any criminal history, it is of the utmost importance to have it evaluated before applying for any immigration benefits. If you are currently involved in criminal proceedings, your criminal defense attorney or public defender has a duty to advise you of the immigration consequences a guilty or “no contest” plea carry.
When it comes to criminal offenses for immigration purposes, there is no statute of limitations that precludes an offense from being considered by an adjudicator. The offense or offenses in question also do not necessarily have to result in a conviction to hold negative immigration consequences. While you may expunge your record in criminal court, this does not make the offense disappear for immigration purposes. These offenses can make you either deportable if you were legally admitted to the United States, or inadmissible if you are seeking to enter the United States or were not lawfully admitted.
There are two main categories of offenses: (1) crimes involving moral turpitude (“CIMT”), and (2) “aggravated felonies.”
Crimes Involving Moral Turpitude
While there is no concrete definition of a CIMT in immigration law, it is generally considered conduct that is “depraved or immoral, or a violation of the basic duties owed to fellow man.” An adjudicator looks to whether the conduct indicates a “vicious motive or corrupt mind.” Common examples include larceny, fraud, and crimes involving intent to harm.
To be considered deportable for committing a CIMT, you must have been convicted within 5 years of admission to the United States and the crime carries a sentence of at least one year. If you were convicted of multiple CIMTs, you are also deportable.
To be considered inadmissible, you must have been convicted of the CIMT, admitted having committed the CIMT, or admitted to committing acts that would be considered a CIMT.
An aggravated felony is a deportable offense that carries some of the harshest immigration consequences. Contrary to what the name suggests, the crime does not need to be a felony to be considered such. These are officially enumerated within immigration law under 8 USC § 1101(a)(43), and include bribery, burglary, counterfeiting, forgery, fraud with loss exceeding $10,000, receipt of stolen property, and theft. Many of these require sentences of at least one year.
Outside of these two categories, other offenses that are considered grounds of inadmissibility or deportability include controlled substance offenses, prostitution, trafficking, firearms offenses, and domestic violence offenses.
Non-Immigrant Visa Waivers
If you have been found inadmissible to the United States after applying for a non-immigrant visa, you may be eligible to have the inadmissibility ground waived through a waiver under section 212(d)(3) of the Immigration and Nationality Act, also known as a “Hranka waiver.” The specific grounds evaluated for this waiver are:
- The recency and seriousness of the actions that made you inadmissible;
- Reason for proposed travel to the United States;
- The positive or negative effect of the entry to U.S. public interests;
- Whether the conduct is a single, isolated incident, or a pattern; and
- Evidence of reformation or rehabilitation.
Most grounds of inadmissibility can be waived except security-related grounds of inadmissibility, and you are not eligible for a waiver if you are found to have immigrant intent. You may apply for a waiver at a consulate abroad, or at a US port of entry in certain circumstances. Waivers are generally granted for a period of 6 months or 1 year and can be issued for up to 5 years.
Immigrant Visa Waivers
If you have been found inadmissible to the United States when applying for an immigrant visa abroad or to adjust status within the United States, you may still be eligible with a waiver of inadmissibility. The necessary waiver and grounds of eligibility will ultimately be determined by the ground of inadmissibility.
For criminal convictions, waivers fall under section 212(h) of the Immigration and Nationality Act. This allows you to waive CIMTs, convictions where the aggregate sentence was 5 years or more, prostitution offenses, or a sole offense of simple marijuana possession, 30 grams or less.
If the offense occurred at least 15 years ago, then the offense may be waived if your admission would not go against national welfare, safety, or security, and you have shown rehabilitation. If not, you must show extreme hardship to a US citizen or LPR spouse, parent, or child if your application is denied. To determine extreme hardship, the adjudicator factors in family ties to the US and outside of the US; country conditions; the financial impact of your departure; and serious medical conditions. There is also a waiver for battered spouses.
These waivers are a matter of discretion, and the bar to exercise discretion is extremely high for offenses deemed “dangerous our violent.”
If you sought to gain or gained an immigration benefit under US immigration law through fraud or willful misrepresentation, waivers fall under section 212(i) of the Immigration and Nationality Act. In order to qualify for this waiver, you must show extreme hardship to a US citizen or LPR spouse or parent. The same hardship factors described above are considered for fraud waivers.
If you have falsely claimed to be a U.S. citizen, this fraud cannot be waived.
Unlawful Presence Waiver
When you enter the U.S. without an inspection, overstay the authorized period of stay, or violate status, you accrue unlawful presence. If you accrue more than 180 days but less than one year and subsequently leave the U.S., you will be barred from entry for 3 years. If you accrue more than a year, and then leave, you will be barred from entry for 10 years. If you accrue over one year of unlawful presence, leave, and then re-enter or attempt to re-enter unlawfully, you will be permanently barred from the United States. For the 3 and 10 year bars, unlawful presence is counted during a single stay; for the permanent bar, it is counted in the aggregate. Unlawful presence only counts after April 1, 1997, and for purposes of the 3 and 10 year bars, children do not accrue unlawful presence before age 18.
If you have triggered the 3 or 10-year bar, you may qualify for a waiver if you can demonstrate extreme hardship to a US citizen or LPR spouse or parent. The same hardship factors described above will be considered.
There are other waivers available under immigration law particularly to fact-specific circumstances. Our team at David Hirson & Partners are here to evaluate those options through a consultation.
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Matter of Silva-Trevino, 24 I&N Dec. 687 (AG 2008)