The U.S. marriage-based green card application is a highly scrutinized visa process, largely due to the prevalence of fraud cases. The process becomes even more complicated if an applicant has a past criminal record, especially a conviction. Under immigration law, you are required to declare your criminal history when filing your marriage-based green card petition, regardless of whether the case was minor or severe.
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Fortunately, a past crime does not automatically lead to a denial, though it may make your approval chances slimmer. Obtaining a green card with a criminal history requires meeting specific legal requirements. This article provides a complete guide to the types of crimes that can impact your marriage-based green card application and explains how to file your petition if you are affected.
A common question applicants have is, “Can you get a green card with a misdemeanor?” The answer depends less on the “misdemeanor” label and more on how U.S. immigration law classifies the specific offense.
Crimes That Can Stop You From Getting a Marriage Green Card
The criminal history section of the marriage-based green card application form can be complicated for many applicants because it may require you to disclose every past interaction you’ve had with law enforcement, both within and outside your home country.
You must disclose even minor cases in your petition, as lying or intentionally obscuring information will complicate your situation significantly. However, not all crimes lead to an immediate denial of a marriage-based green card. Immigration law separates crimes that may lead to denial into three categories:
- Crimes that Involve Moral Turpitude
- Aggravated Felony
- Drug-Related Crimes.
Crimes Involving Moral Turpitude
A crime involving moral turpitude in the context of the U.S. immigration law means a crime committed with malicious intent. While there is no official definition from Congress, case law generally defines moral turpitude as conduct that shocks the public conscience as being inherently base, vile, or depraved.
Essentially, any act committed recklessly or maliciously can be considered a crime of moral turpitude. There are four general categories of Crimes Involving Moral Turpitude (CIMTs): Crimes against a person; Crimes Against Property; Sexual and Family Crimes; and Crimes Against Authority of the Government.
Some of these crimes include:
- Abandonment of a minor child
- Blackmail
- Bribery
- Burglary
- Fraud
- Kidnapping
- Murder
- Lewd Conduct
- Rape
Malicious intent refers to whether you actually committed the offense, just made an attempt, or conspired with others in planning or carrying it out.
It must be noted, however, that some forms of assault or battery and some parking or moving violations don’t count as moral turpitude.
Does your spouse have a criminal conviction? Speak to one of our attorneys to discuss further.
Aggravated Felony
Aggravated felonies are among the most damaging crimes and often lead to deportation for non-citizens. Similar to moral turpitude, the definition of an aggravated felony for green card applications differs from its general definition under federal law. The determination is based on a list of crimes provided by Congress in the Immigration and Nationality Act, which makes an applicant inadmissible. These include, but are not limited to:
- Murder, rape, sexual abuse of a minor
- Illicit trafficking in controlled substances
- Illicit trafficking of firearms or destructive devices
- Theft or Violent crime for which the sentence was at least one year
- Money Laundering (over $10,000)
- Child pornography offense
- Certain Gambling or racketeering (imprisonment term of at least 1 year)
- Human trafficking, transporting, and managing for prostitution
- Persecution, torture, genocide
- Obstruction of Justice or Perjury
- Failure to appear for a Sentence or in Court
These are very serious offenses, and if you are worried about your spouse’s prior convictions for these offenses, it would be best to speak with an immigration attorney.
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Drug-Related Crime
You may also be inadmissible to the U.S. if you have been involved in any drug-related crime. This includes possessing or engaging in illicit trafficking of controlled substances such as cocaine, heroin, and even marijuana, regardless of state law decriminalizing marijuana.
If you were convicted of having fewer than 30 grams of marijuana, you may still be able to obtain a marriage-based green card, but this will require you to apply for a waiver.
Will Immigration Officers Find Out If I Don’t Declare Past Crimes In My Application?
Yes, immigration officers will find out if you do not declare past crimes on your application. During the application process, green card applicants are always required to disclose any past arrests or convictions. This information is one of the key factors that immigration officers use to determine your admissibility.
Just as with all aspects of the immigration process, it is advisable to be honest. There will be thorough background checks, so anything hidden will pop up during those checks. Failure to be honest about your criminal history will constitute giving false testimony or misrepresentation.
In many cases, those who refuse to declare their past criminal history are caught through other means. As part of your application process, you will undergo biometric screening (involving fingerprint checks), which will reveal your records, including any crimes you have committed in the past. If you are caught in this dishonesty, the consequences can be severe. These could include denial of a marriage-based green card, a permanent bar from future immigration attempts, or even deportation if you are already in the U.S.
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How Do I State My Past Crimes When Filing A Petition?
You will state your past crimes in the green card process on the application form, specifically for inadmissibility on past criminal activities. This includes arrests and convictions. You will be asked a series of questions. When you come across a crime you have committed in the past, you are expected to answer “yes” with additional information.
The additional information should include an explanation of what actually occurred, as well as the date and location where the event took place. If there is documented evidence of the event, such as police statements or court decisions, you will need to provide it as part of the evidence for your application.
Green Card Sponsors with Criminal Records
Besides the immigrant, the sponsor’s criminal history can also impact the marriage-based green card application. The sponsor is subject to background checks, and green card sponsors with certain criminal records may be barred from sponsoring a spouse if the convictions are related to certain serious crimes.
Crimes that can disqualify a sponsor:
- Sexual abuse of a minor
- Child pornography offenses
- Kidnapping
- Crimes involving the physical/psychological abuse of a child
If the sponsor has been convicted of one of those offenses, then the petition will most likely not be approved. The Department of Homeland Security ultimately determines if the petition will be approved.
Does a Criminal History Automatically Cause Denial of a Marriage-Based Green Card Application?
No, your past criminal record may not necessarily automatically result in a marriage-based green card denial. In some cases, all you need to do is meet the criteria for a waiver request and convincingly present your petition. Some crimes, such as murder, drug trafficking, and other felonies, generally make people unqualified for the waiver request.
Depending on the type or severity of the crime, you may be allowed to file a waiver for various reasons. One basis for applying for a waiver is to prove that denying you a green card would cause extreme hardship to your U.S. citizen or permanent resident spouse. Another reason may be to support a waiver of criminal grounds of inadmissibility found in INA section 2(a)(2). Some of the crimes that you are allowed to file a waiver for include:
- Being convicted of prostitution or a crime related to prostitution
- Past crime involving moral turpitude
- If you were convicted of being in possession of fewer than 30 grams of marijuana
Does It Matter When the Crime Was Committed?
Yes, the time of the crime matters when weighing your chances of getting a marriage-based green card. If you were recently convicted, the likelihood of facing denial is higher than if the crime happened recently. One of the criteria for getting a green card is for an applicant to demonstrate good moral behavior for the 3-5 years leading up to their application.
Also, for a minor felony conviction, you may still be considered for a green card if the incident happened 10 or more years before your application. This will depend on how well you can prove your case to the immigration officers. However, in the case of an aggravated felony, you will likely be permanently barred from receiving a green card.
How to File a Criminal Record Waiver for a Green Card
The time to file a waiver will depend on your location. If you are applying from your home country, you will need to wait until after the consular interview. At your interview, the immigration officer will inform you whether or not your criminal history will affect your admissibility into the U.S., and will tell you if you are eligible for a waiver. If available, you will then file the waiver with USCIS. If approved, the waiver will be forwarded to the U.S. Embassy, which will schedule a follow-up interview.
Form I-601, Application for Waiver of Grounds of Inadmissibility
If you are applying for a marriage-based green card while in the United States, you may file a waiver concurrently with your I-485. While you may also submit it while your application is pending or after your green card interview, it is generally recommended to file a waiver with your I-485 to avoid delays.
You will need to file an I-601 form to request a waiver. You must submit the I-601 with supporting evidence, such as proof that you qualify for a waiver or evidence that not granting you a marriage-based green card will cause extreme hardship to your spouse.
The filing fee for the I-601 form is currently $1,050, which can be paid using a money order, personal check, or cashier’s check. (Note: USCIS fees are subject to change, so always check the official USCIS website for the most current fee schedule before filing).
You may also submit a G-1145 E-Notification with the waiver to be able to keep track of the process.
How VisaNation Law Can Help
It is up to the discretion of the immigration officers to determine if your criminal history is worth making you inadmissible or not. Even a misdemeanor may lead to your marriage-based green card being denied if your petition lacks clarity. If you have a record of arrests or convictions, your immigration application will require more attention than usual. The best thing is to let an immigration attorney help you gather evidence and file your petition.
VisaNation Law Group consists of a team of marriage-based green card immigration attorneys who are highly experienced in how the criminal history section of the application works. We will examine your case and determine the best way to approach it. Whether you are about to file your petition or have already faced a denial on criminal history grounds, we can help.
