What if you have or your spouse has a criminal record? Can you still get a marriage visa? Yes, generally. Below is more detail.
Does a criminal record mean denial?
If your petitioner or beneficiary has a criminal record, this doesn’t necessarily mean immediate denial, but it can complicate the case. There are several different factors that must be examined in this situation:
- What type of crime was committed?
- Who committed the crime (petitioner or beneficiary)?
- Where did the crime take place?
- What potential waivers are available?
Crimes that raise the most concern:
In immigration law, not all criminal records are viewed with the same levels of concern. According to the U.S. Immigration and Nationality Act §212(a)(2), there are certain categories of crimes that can make a person “inadmissible”, meaning they are ineligible to receive a permanent residency.
Categories that are viewed as most significant include:
- Crimes Involving Moral Turpitude (CIMTs)
- This category includes offenses such as fraud and assault. However, these cases could be considered as single minor offences if the individual was under the age of 18 years old or if the sentence was less than six months long.
- Controlled Substance Violations
- This category includes any crimes related to drugs – including in the U.S. and abroad. If an individual has even a single offense in this category, it can make them inadmissible to receive a permanent residency.
- Multiple Convictions
- If an individual has two or more convictions with a total of 5 years or more in sentence, it could seriously harm their application and result in a denial.
- Prostitution and Vice-Related Offenses:
- Within 10 years of applying, any engagement with prostitution or any other type of unlawful commercialized vice can lead to denial of an application.
- Human Trafficking and Money Laundering:
- These are serious federal offenses and can lead to automatic denial of an individual’s application.
- An example of this is shown in the Adam Walsh Act (which explains that petitioners with a crime regarding children are permanently barred unless a waiver is granted by USCIS).
However, it is important to note that even if an individual is deemed as inadmissible according to these categories, there are waivers that can be available depending on the circumstances. If you need assistance navigating this process, consider booking a consultation.
Less-serious offenses:
The majority of minor or older misdemeanors such as a low-level theft charge does little to make someone inadmissible for a green card. That said, these types of offenses can be problematic in the review process. The USCIS may ask additional questions, request additional paperwork and lengthen the time to a decision.
In these circumstances, officers also consider evidence of rehabilitation. Favorable considerations include community service, evidence of completing a counseling or treatment program, evidence of steady employment, and affidavits from family or community members attesting to good moral character. Having this information could help alleviate the impacts of the crime.
Waivers and possible relief:
A waiver could allow an applicant to still qualify for a marriage-based green card in some situations where there is a criminal record. INA §212(h) waives some criminal grounds of inadmissibility if it can be proven that denial would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.
For example, only having one conviction for a single offense of possession (30 grams or less) of marijuana would qualify. Other situations may also qualify, but USCIS looks at each case individually. An individual must evaluate whether a waiver is available and whether they meet all the requirements.
Full disclosure is crucial:
It is required to disclose any and all arrests and convictions, no matter how minor or long ago in the past, on an immigration application (I-130, I-485 or DS-260). Failure to disclose all can lead to automatic denials. USCIS reviews all types of records when looking for evidence of inadmissibility including court dispositions, police reports, and background checks. Providing certified court records or other evidence of rehabilitation can help reduce delays. It is always better to disclose as much information as possible than to let USCIS find it on their own.
Giselle M. Rodriguez is a Boston immigration lawyer who helps clients with marriage visas, fiance(e) visas (K-1 visas), and other family-based immigration options. Giselle is bilingual, speaking English & Spanish. Contact Giselle today to discuss your case.
Note: the information on this page is for educational purposes only, and does not constitute legal advice or an attorney-client relationship.