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Criminal Charges and Immigration

Last year, nearly 1 million people were granted legal permanent resident status in the United States, and roughly another 780,000 became naturalized citizens. At any given time, there are hundreds of thousands — if not more — applications in process for visas, green cards, or citizenship by people who want to live, work, study, or conduct business in the United States.

Immigration is a complicated process, and the bureaucracy involved can be Byzantine, from the numerous forms and documents required for a visa, residency, or citizenship application to the background checks and interviews that a potential visitor, resident, or naturalized citizen must undergo. The process and rules can be hard to understand, and potential immigrants or citizens are subject to being scrutinized down to the last detail.

Whether you’re applying for a student visa or a green card to work in the United States, or want to become a new citizen, it’s important to know how any prior criminal charges or convictions might affect your application. Some offenses may have no effect at all. For example, minor traffic offenses such as speeding tickets won’t typically stop you from getting a visa or a green card. But other types of offenses may be cause for your application to be denied — and even for you to be deported back to your home country. Read below to learn about criminal charges and immigration.

Impact of Criminal Charges & Convictions on Immigration

Visas

Non-Immigrant Visas

When someone from a foreign country wants to travel in the United States, he or she typically needs a visa. Non-immigrant visas are used when someone wants to be in the United States for some finite period of time, rather than becoming a permanent resident and/or ultimately applying for citizenship. Visa applications are handled by the U.S. Department of State, and applications typically are made to an embassy or consulate in your home country, or the nearest one if there is none in your home country.

There are numerous types of non-immigrant visas. The type of visa a person needs will depend on the reason he or she is visiting the United States. Some types of non-immigrant visas are highly specific. For example, there’s a visa called an E3 visa that is specifically for an Australian citizen who is coming to the U.S. only for the purpose of working in a specialty occupation.

Other types of non-immigrant visas are more broad. Some types of non-immigrant visas include:

  • Tourist visa
  • Student visa
  • Guest Worker visa
  • Business Visitor visa
  • Criminal Victim visa
  • Human Trafficking Victim visa
  • Non-Immigrant Spouse or Child of a Permanent Resident visa

Immigrant Visas

Another category of visas exists for people who want to immigrate to the United States and make the country their home. As with non-immigrant visas, there are numerous types of immigrant visas, and the specific type you need will depend on the reason you want to immigrate to the U.S. Some common types of immigrant visas include:

  • Spouse of a U.S. Citizen visa
  • Fiancé or fiancée of a U.S. Citizen visa
  • International Adoption visas
  • Certain Family Members of U.S. Citizens visas
  • Certain Family Members of Permanent Residents visas
  • Employer-Sponsored Employment visas
  • Employment-Based Immigrants visas
  • Returning Resident visas

Permanent Residency/Green Card

Immigrants who want to become permanent residents of the United States can do so in one of a few different ways.

  • If you are the immediate relative of a U.S. citizen. Immediate relatives include being the parent of a U.S. citizen, spouse of a U.S. citizen, or child under age 21 of a U.S. citizen, you may be eligible for a green card.
  • If you are another qualifying relative of a U.S. citizen. Qualifying relatives in order of preference for available visas include unmarried adult children of U.S. citizens; spouses of permanent residents and unmarried children under age 21 of permanent residents; unmarried adult children of permanent residents; siblings of adult U.S. citizens, their spouses and their minor children.
  • If you have employment or a job offer. In order of preference, employment visas may be granted to priority workers, including people with extraordinary abilities, professors and researchers at the top of their field, and some multinational executives and managers; professionals with advanced degrees or people with exceptional abilities; skilled workers and professionals; certain special immigrants including people in religious vocations; investors or entrepreneurs who create jobs.
  • If you are a refugee or are granted asylum, or are the spouse or child of someone granted asylum.
  • Other special categories, such as being a victim of domestic violence or child abuse, a victim of criminal activity, a surviving spouse of a U.S. citizen, or your parent is a foreign diplomat in the U.S.

While visas are processed and approved by the U.S. Department of State, your application for permanent residency will be handled and either approved or denied by U.S. Citizenship and Immigration Services.

How a Criminal Record Affects Your Visa or Green Card Application

When you seek entry into the United States, or to become a permanent resident of the country, part of the application process will involve a criminal background check. Convictions for certain types of crimes can prevent you from getting a student visa, work visa, spouse visa, green card, or other type of visa or permission to enter or live in the U.S. Serious offenses, including most felonies, likely will mean denial of your application.

Under Section 212(a)(2) of the Immigration and Nationality Act, you may be deemed ineligible to be admitted to the United States because of a criminal record when:

  • You were convicted of a crime of moral turpitude, an attempted crime of moral turpitude, or conspiracy to commit a crime of moral turpitude
  • You were convicted of a drug crime, an attempted drug crime, or conspiracy to commit a drug crime
  • You have multiple criminal convictions
  • You engaged in drug trafficking or an offense related to drug trafficking
  • You engaged in prostitution or procurement
  • You were charged with a serious criminal offense, asserted immunity from prosecution, and then left the United States without submitting to the jurisdiction of a U.S. court
  • You engaged in human trafficking
  • You engaged in money laundering
  • You were a foreign government official who committed severe violations of religious freedom

Crimes of Moral Turpitude

A crime of moral turpitude often involves some aspect of fraud, larceny, or an intention to harm a person or property. U.S. immigration law excludes crimes that are purely political in nature. For example, breach of the peace is listed as a crime of moral turpitude for visa application purposes, but if your conviction was solely for participation in a political protest, it may not count against you.

There also is an exception if you committed the offense when you were under age 18, the crime was committed and you were released from incarceration more than five years before your visa application. So if, for example, you’re a 21-year-old college student seeking a student visa and were convicted of shoplifting when you were 15, you may be eligible to get a student visa as long as you completed your sentence more than five years ago.

Another exception exists when the offense you committed was relatively minor, which is defined as an offense for which the maximum penalty does not exceed one year of incarceration and you were not sentenced to more than six months when convicted.

For a crime to affect a visa application, it may have been committed on American soil or in another country. You will have to provide a copy of your court records from wherever you were convicted when you apply for your visa.

The list of crimes that may involve moral turpitude and therefore affect a visa application is lengthy. Crimes of moral turpitude fall into the general categories of crimes against property, crimes against the government, and crimes against person, family relationship, or sexual morality.

According to the U.S. Department of State, some common crimes of moral turpitude that may affect your visa application include:

  • Burglary
  • Arson
  • Blackmail
  • Embezzlement
  • Extortion
  • False Pretenses
  • Forgery
  • Fraud
  • Petit or Grand Larceny
  • Malicious Destruction of Property
  • Knowingly Receiving Stolen Goods
  • Robbery
  • Theft
  • Transporting Stolen Property
  • Bribery
  • Counterfeiting
  • Tax Fraud or Fraud Against the Government
  • Mail Fraud
  • Perjury
  • Knowingly Harboring a Fugitive
  • Willful Tax Evasion
  • Assault with Intent to Kill; Assault with Intent to Rape; Assault with Intent to Commit Robbery; Assault with Intent to Commit Serious Bodily Harm; Assault with a Dangerous or Deadly Weapon
  • Child Abandonment
  • Bigamy
  • Contributing to the Delinquency of a Minor
  • Gross Indecency
  • Incest, if the result of an improper sexual relationship
  • Kidnapping
  • Lewdness
  • Voluntary Manslaughter
  • Involuntary Manslaughter
  • Murder
  • Mayhem
  • Pandering
  • Possession of Child Pornography
  • Prostitution
  • Rape, including Statutory Rape

Drug Crimes

Your visa or green card application can be denied if you’ve been convicted of a crime related to a controlled substance. Similar to crimes of moral turpitude, there are exceptions when you committed the offense as a minor and the conviction was more than five years ago, and if it was a petty offense punishable with a maximum of one year in prison, and you actually served six months or less.

Drug crimes that may prevent you from getting a visa or a green card include:

  • Possession of a Controlled Substance — Typically defined as knowingly and potentially having a controlled substance on your person or within your immediate control
  • Possession of Drug Paraphernalia – Beyond devices for taking drugs, this can include things like scales, measurement items, and other commonly associated products for the use, manufacturing, or distribution of a controlled substance
  • Manufacturing a Controlled Substance — This can include cultivating plants or producing an illegal substance in a lab
  • Distribution of a Controlled Substance — This can include selling, delivering, or giving a controlled substance to someone illegally

A controlled substance could be any one of numerous substances listed in federal drug schedules in the Controlled Substances Act at 21 U.S.C. 802. Some common illicit drugs included on the schedules are:

  • Cocaine
  • Heroin
  • Methamphetamine
  • Marijuana
  • PCP
  • LSD
  • Ecstasy

Drug Crimes and Immigration

The drug schedules also include legal medications that may be illegal to possess without a valid prescription, such as:

  • Pain medications such as Oxycontin, Percocet, Hydrocodone, Vicodin, Codeine, Morphine, or Fentanyl
  • Tranquilizers such as Valium, Xanax, and Ativan
  • Barbiturates such as Amytal, Nembutal, Seconal and Phenobarbital
  • Stimulants such as Adderall or Ritalin

The Immigration and Nationality Act specifically calls out offenses related to trafficking in a controlled substance as crimes for which you can be denied entry or residency in the United States. Trafficking is similar to distribution, but typically dealing with large quantities of the controlled substance.

Federal drug trafficking offenses in the United States are very serious crimes, punishable by years in prison and potentially millions of dollars in fines. For example, a first conviction for trafficking in 500 to 4,999 grams of cocaine, or about 1 to 11 pounds, can be punished with 5 to 40 years in prison and a fine of up to $5 million for an individual. Trafficking in 5 kilograms or more, or more than about 11 pounds, can carry a sentence of 10 years to life in prison and a fine of up to $10 million.

You may be deemed ineligible for a visa or green card not only for a conviction for drug trafficking, but for related offenses including aiding, abetting, assisting, conspiring, or colluding with others to traffic in illicit drugs. However, a conviction is not required in order for your visa or green card to be denied. The officials reviewing your application just have to know or have reason to believe based on substantial evidence that you engaged in drug trafficking or related activity.

The spouse, son, or daughter of someone involved in drug trafficking also may be denied a visa or green card if spouse or child of the drug trafficker has received any financial or other benefit from the drug trafficking within the last five years, and knew the money or benefit came from drug trafficking.

The exception for having committed the crime as a minor does not apply for a drug trafficking offense.

Prostitution and Commercialized Vice

Under the Immigration and Nationality Act, you may be denied a visa or a green card when you:

  • Come to the U.S. for the sole, primary, or incidental purpose of engaging in prostitution
  • You engaged in prostitution within 10 years before your application
  • Within the last 10 years before your application, you procured or attempted to procure prostitutes; trafficked in prostitutes; or received the proceeds of prostitution
  • Engaged in any other illegal commercialized vice

According to the U.S. Department of State, convictions for vagrancy, disorderly conduct, or loitering for the purpose of prostitution may lead to a determination of ineligibility for a visa or green card under this part of the Immigration and Nationality Act.

Asserting Immunity

If you were charged with committing a serious criminal offense in the United States and claimed immunity from prosecution, then left the United States, you may be denied a visa or green card when you attempt to return unless you subsequently submitted yourself to the jurisdiction of a U.S. court for the offense.

Serious criminal offenses may include:

  • Any felony
  • Any violent crime
  • Reckless driving
  • DUI or DWI

Human Trafficking

Similar to the provision involving drug trafficking, the Immigration and Nationality Act allows the official reviewing your visa or green card application to deny you entry or residency if the official knows or has reason to believe that you have engaged in human trafficking. No conviction is necessary — just knowledge or belief based on substantial evidence.

This provision also applies to anyone known or believed to aid, abet, assist, conspire with, or collude with someone engaged in severe forms of human trafficking, and to a spouse, son or daughter who received financial or other benefit from the human trafficking within the last five years when it was known that the benefit derived from human trafficking. The statute makes an exception to the benefit provision when the son or daughter was a child when the benefit was received.

Money Laundering

A visa or green card can be denied to any person known or believed to be engaged in money launder, or who is known to have aided, abetted, assisted, conspired with, or colluded with anyone engaged in money laundering.

Multiple Criminal Convictions

Beyond the specific types of crimes that can be a barrier to getting a visa or a green card, multiple convictions for any kind of crime can lead to your application being denied. The Immigration and Nationality Act provides that a conviction for two or more offenses — other than those that are purely political — can be reason to deem you ineligible for entry or residency. However the multiple convictions provision applies only when your aggregate sentence for your offenses was five or more years in prison.

You can be barred from getting a visa or green card even when both offenses were charged and tried at the same time. The convictions do not have to have happened at different points in your criminal history. Also, there is no requirement that the offenses be crimes of moral turpitude or fall into any of the other categories of crimes for which your application can be denied.

Effects of Expungement or Alternate Sentencing

Even an expungement may not prevent your past criminal history from affecting your immigration status. When you apply for a visa or a green card, offenses that have been expunged from your record, and for which your court records have been sealed, may be visible to immigration officials and considered as they evaluate your eligibility for a visa or residency.

If you were charged with a crime and were allowed to complete a diversion program or other alternate sentencing program in which you entered a guilty plea in lieu of a conviction and/or jail time, immigration officials may count that as a conviction for purposes of your visa or green card application. For example, if you were charged with possession of marijuana and were allowed to enter a guilty plea and attend drug rehab instead of a conviction and a traditional sentence, you may be considered to have a drug conviction for immigration purposes.

Waivers

In some cases, if you are ineligible for a visa or green card because of a past crime, you may be able to get a waiver at the discretion of the Attorney General. Waivers may be granted for the following types of crimes:

  • Crimes of moral turpitude
  • Prostitution and commercialized vice, if your offense happened more than 15 years before your application
  • Multiple criminal convictions
  • Assertion of immunity
  • A single offense for possession of 30 grams or less of marijuana

You may be able to get a waiver if:

  • Allowing you into the U.S. would not threaten the country’s welfare, safety, or security, and you have been rehabilitated;
  • Or your denial would impose a hardship on a spouse, parent, son, or daughter who is a U.S. citizen or legal permanent resident;
  • Or you are self-petitioning as a victim of violence against women

To get a waiver, the Attorney General first must consent to your applying or re-applying for a visa or a green card.

You cannot get a waiver if your crime was murder, acts of torture, or an attempt or conspiracy to commit murder or acts of torture.

Naturalization/Citizenship

Statue of Liberty

When you go through the naturalization process to become a United States citizen, you will have to undergo a background check that includes providing your fingerprints to the Federal Bureau of Investigation (FBI) so that your criminal history can be examined. The FBI also will perform a name check that involves searching the agency’s Universal Index and providing those results to U.S. Citizenship and Immigration Services.

One of things you have to show when you apply for citizenship is that you’ve had a good moral character for the five years prior to your application. In essence, good moral character means that you’ve lived up to community standards for the average citizen. A criminal history during that time may be considered evidence that you do not have the requisite good moral character and your application may be denied. Some offenses also may result in deportation after your background check is completed.

Under Section 101(f) of the Immigration and Nationality Act, certain things will automatically demonstrate your lack of good moral character. Those include:

  • You are a habitual drunkard. A history of alcohol-related offenses such as DUIs may be evidence to support this.
  • You are engaged in prostitution, procurement, or commercial vice.
  • You were engaged in smuggling illegal immigrants into the U.S.
  • You are a practicing polygamist.
  • You committed a crime of moral turpitude.
  • You committed a drug crime.
  • You have multiple criminal convictions with an aggregate sentence of 5 years or more.
  • You engaged in drug trafficking.
  • Your income was derived primarily from illegal gambling.
  • You were convicted of two or more gambling offenses.
  • You gave false testimony to obtain immigration benefits.
  • You were convicted of a crime and served an aggregate of 180 days or more of incarceration, regardless of the offense.
  • You were convicted of an aggravated felony.
  • You participated in Nazi persecution, genocide, the commission of any act of torture, or any extrajudicial killing.

Deportation for Crimes Committed in the U.S.

Entering the United States is just the first hurdle for anyone who wants to become a permanent resident or a citizen. The process of getting a visa or a green card is just the beginning, and even after your application granted you must obey the laws of the United States or risk serious consequences.

Along with the possibility of serving time in jail or prison, when you commit a crime while in the United States on a visa or green card, your lawful immigration status may be revoked and you may be deported to your home country. If you entered the United States without first obtaining a visa or green card, the risk that committing a crime imposes is even greater and even the most minor of offenses may result in your deportation.

Undocumented Residents

Someone who is living in the United States illegally can be deported to his or her home country any time they’re caught residing in the country without a valid visa or green card. However, committing a crime and being arrested increases the likelihood of deportation.

When you’re arrested by a local law enforcement agency — even for something such as a minor traffic offense — and they believe that you’re an undocumented immigrant, that agency may notify Immigration and Customs Enforcement and you may be held for up to 48 hours pending an interview with ICE to determine whether deportation proceedings should begin.

Deportation is not automatic and is not immediate. You have the right to appear before an immigration judge. You may have a lawyer represent you at your own expense, but you do not have the right to have a lawyer provided for you by the government.

Legal Visa or Green Card Holders

After your visa or green card has been granted, you may be deported for committing certain crimes. Those include:

  • Crimes of moral turpitude within five years after being admitted to the U.S., or 10 years for legal permanent residents, when the sentence that may be imposed for the crime is one year or more
  • Conviction for two or more separate crimes of moral turpitude, regardless of whether you serve jail or prison time
  • Conviction for any aggravated felony
  • Conviction for high speed flight from an immigration checkpoint
  • Conviction for failure to register as a sex offender
  • Conviction for drug crimes, other than possession of 30 grams or less of marijuana
  • Conviction for firearms offenses
  • Conviction for espionage, sabotage, treason, or sedition
  • Conviction for domestic violence, stalking, child abuse, child neglect, or child abandonment
  • Conviction for violation of a protection order
  • Conviction for human trafficking

Naturalized Citizens

You won’t typically have citizenship revoked for committing a crime once you have been naturalized, but it may be revoked if you conceal a crime that would have resulted in you being ineligible for citizenship. Revocation can happen when:

  • Your misrepresentation of your criminal history was willful,
  • The misrepresentation was material to your citizenship application, and
  • You obtained citizenship because of the misrepresentation.

If your citizenship is revoked, your Certificate of Naturalization will be canceled and you will have to surrender your certificate. The revocation is retroactive to the day you became a naturalized citizen. You return to whatever your immigration status was before you became a citizen. Depending on your prior immigration status, you may undergo deportation proceedings.

Contact an Attorney for Criminal Charges and Immigration Questions

If you have questions about any criminal charges and immigration, contact Luftman, Heck, & Associates. A strong defense strategy from us may protect your rights and save your future. Learn how a Columbus criminal defense attorney can help you.

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