ADJUSTING STATUS WITH A CRIMINAL RECORD

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CONCERNS ABOUT PAST CRIMINAL ACTIVITY

All Green Card applicants (applicants for lawful permanent residency in the United States) should be prepared for United States Citizenship and Immigration Services (USCIS) to ask detailed questions about their past criminal activity (if any).

What Will USCIS Ask About My Criminal Record?

The first time you’ll come across questions about your criminal history is on Form I-485, Application to Adjust Status (if you’re applying for a Green Card while you’re already in the United States) or on Form DS-260, Immigrant Visa Application (if you’re outside of the United States and applying for a Green Card through a U.S. Embassy Consulate). (Here is a general overview of both processes.)

In either case, USCIS expects you to be honest and provide detailed accounts about all encounters you’ve had with the authorities in your home country or the United States  other than those stemming from minor traffic violations. This means you should include information about any occasion on which you were cited, arrested, or charged with a crime, even if the charges did not result in a conviction or your record has been cleared.

In all, you’ll find approximately 20 questions about criminal activity on these forms. Some will pertain to your criminal record and others will pertain to your future intentions.   Don’t be surprised by questions regarding serious crimes involving drugs, human trafficking, money laundering and prostitution.

What Should I Include If I Have A Criminal History?

No matter which form you’re using to apply for a Green Card, it’s very important that you read any and all questions pertaining to criminal activity very carefully. If you don’t understand a question, don’t be afraid to ask someone you trust for help.

Don’t forget that these questions pertain to any and all criminal activity. It doesn’t matter if the incident happened in your home country, the United States or even another country. If you have relevant criminal history, you must provide all required information in the specified place on the application.

For each and every question that applies to you, be sure to provide detailed information such as the date of the incident, the place where you were arrested, what you were charged with, whether the case went to trial or resolved (through a plea bargain or similar measure) prior to trial, or whether the charges were dropped or the case was dismissed.

You should also provide the official documents reflecting past arrests, convictions and so forth. Examples include but are not limited to police and court documents.

If you have a criminal record, it is perfectly natural to worry or be concerned about how it will affect your chances of becoming a lawful permanent resident of the United States. However, there is hope. Just because you were arrested or charged with a crime and later found not guilty does not necessarily result in automatic denial of your Green Card application. 

Remember, honesty is always the best policy. If you provide false or inaccurate information about your criminal history on an application and USCIS finds out, you will no longer be eligible for a Green Card.

How Are Violent And Dangerous Crimes Defined Under Immigration Law?

Under U.S. immigration law, a conviction (as a result of accepting a plea bargain or being found guilty by a judge or jury) on any of the following crimes will render you ineligible to get a Green Card. They are:

  • Aggravated felonies
  • Crimes involving “moral turpitude”
  • Illegal drug crimes

In the context of U.S. immigration law,  “aggravated felonies” are those identified on a list of crimes as determined by Congress that render an immigrant “inadmissible.” These may include illegal activity ordinarily classified as misdemeanors under state or federal law.

Some examples of these “aggravated felonies” include:

  • Murder
  • Drug trafficking
  • Filing a false tax return
  • Sexual abuse of a minor (including consensual sex between a 21-year-old and a minor, as defined by law)

Crimes of moral turpitude may include the following:

  • Murder
  • Rape
  • Fraud
  • Animal abuse or fighting

How Does USCIS Define A Controlled Substance Violation?

If you have been convicted of any serious crime related to the sale, possession or use of illegal drugs, you probably won’t be able to get a Green Card. The only exception set forth in the Immigration and Nationality Act (INA) is for persons who have only one dug conviction and the conviction was on a charge of  possession of 30 grams or less of marijuana for personal use. Even so, anyone convicted of this crime must apply for a waiver.

When Do I Need A Waiver And How Do I Get One?

Depending on the circumstances of your case, you may be eligible to apply for a “waiver of inadmissibility” to disregard past criminal activity. This is only possible if you can prove that your admission to the United States would not put anyone else in jeopardy, and that your husband or wife who is  U.S. citizen or lawful permanent resident would experience “extreme hardship” due to your absence.

The waiver cannot be used if you have past convictions for all but the most trivial drug crimes, murder or torture.

If you’re applying for a Green Card from inside the United States, you can file your waiver request when: you file your Green Card application, while the application is pending, or at your Green card interview.

If you’re applying for a Green Card while you are in another country, the only option is to apply for a waiver during your Green Card interview at the U.S. Embassy or Consulate.

When To See A Lawyer

If you have a criminal record, it is not necessarily a barrier to becoming a lawful permanent resident of the United States. However, it does make filing your Green Card application more difficult than it would be otherwise. Therefore, it is important to consult a qualified immigration attorney for assistance with this process.

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