Impact of criminal convictions on immigration status

Certain criminal convictions render individuals seeking immigrant (Lawful Permanent Resident, LPR, green card) or non-immigrant status (H1-B, K-1, K-3, L, TN) inadmissible or removable.

Depending upon the charges, waivers may be available in certain circumstances. Depending upon the type of waiver and the country of citizenship, waivers may be sought at the port of entry, border crossing, airport, consulate, or by other means of filing.

Immigration law considers certain theft, drug trafficking, drug manufacturing, murder, rape, sexual abuse of minors, firearms trafficking, crimes of violence, fraud, prostitution, pornography, and other convictions to be aggravated felonies for immigration purposes. In some instances, which vary depending upon the criminal charges, the lenght of the criminal sentence can dictate whether or not these crimes are categorized as aggravated felonies. In other instances, the crime alone is sufficient be classified as an aggravated felony. With fraud convictions, convictions may be deemed aggravated felonies if the amount in question is over a certain dollar amount. Aggravated felonies have a far reach in immigration law and greatly limit the options of an individual with an aggravated felony conviction. Limited relief may be available to individuals who were convicted of aggravated felonies before a certain date.

If any convictions are categorized as crimes involving moral turpitude, non-citizens may also face the prospect of being deemed inadmissible or removable. The case law surrounding crimes involving moral turpitude is constantly evolving. If a crime is categorized as one involving moral turpitude, an inadmissible individual may be eligible for a petty offense exception if there is only one conviction of a crime involving moral turpitude, the maximum sentence is no more than one year, and the sentence given is less than six months.

Typically, if criminal charges are currently pending, individuals should seek an immigration attorney to analyze their particular facts and inform not only them, but their criminal defense counsel, of the possible immigration implications of their criminal charges and potential convictions. In some cases, judges and prosecutors are willing to consider letters from immigration attorneys regarding the immigration consequences of particular sentences and criminal charges.

If criminal convictions already exist, individuals should seek immigration counsel to help them determine the consequences that they may face. Sometimes, traveling or filing various visa applications with criminal convictions can be very complicated, especially if a waiver, or waivers, are required.

Convictions potentially complicate the already complex area of immigration law.

How many immigration related government entities does it take to get something right?

The officers working for U.S. Customs and Border Protections at the Ports of Entry around the United States, whether at the airport or at a land crossing such as the Peach Arch in Blaine, Washington, have incredibly broad discretionary powers that can make or break someone's day, or perhaps, life. At the very least, they can make an entry to the U.S. very stressful. A case in point is the experience one of my clients (I'll call him Jake) recently had when seeking to reenter the United States from Canada after a short trip.

My client, who is married to a U.S. Citizen, obtained a multiple entry K-3 visa based on his marriage and eventually filed for lawful permanent resident status (adjustment of status). Prior to him leaving for Canada he was interviewed with his wife at the Seattle Field Office of U.S. Citizenship & Immigration Services in Seattle. At the interview, with his attorney present, the fact that Jake had some criminal history was discussed with the interviewing officer. There was nothing to hide about this history since it came up during the process necessary to obtain the K-3 visa. In fact, our office presented legal argument to the consulate that Jake's criminal history should have no bearing on his eligibility for a visa. The consulate agreed and Jake was issued his visa.

The same legal argument was presented to USCIS prior to the interview and the facts of the case were discussed at length during the interview. At the close of the interview the officer informed us that she had no problem with the criminal history (Jake's offense fell under the petty offense exception) and that she would just need her supervisor's approval. We left that day anticipating that the case would be approved and the green card would follow in the mail as they usually do in approved cases. Well, prior to receiving news of the approval, Jake went to Canada. While he was there his wife called him to let him know that the green card had arrived in the mail. Good news, right?

A day or so later Jake sought to reenter the states using his still valid K-3 visa. At the land crossing the officer inspecting Jake for admission decided he needed to question Jake in greater detail so he placed Jake in an office to be interrogated by another officer. (By the way, Jake was entering the US on a bus so the bus left without him). The line of questioning went something like "are you sure you told USCIS about your criminal history." Jake repeatedly told the officer that he was completely truthful with USCIS and the U.S. Consulate and that his attorney had provided both entities with certified copies of all of the court records and a legal brief. Jake even explained that his green card had been approved just a couple of days earlier. The officer was able to confirm this, but it didn't seem to matter. Four hours later Jake was released, issued a Notice to Appear, and told that he will have to appear in immigration court in Seattle for removal proceedings because of the criminal history.

So here we have three arms of the U.S. Government (U.S. Consulate, USCIS, and USCBP) looking at the same case with the same facts and one of them reaching a different conclusion than the others. And now, another arm, the Department of Justice's Executive Office for Immigration Review, will look at the case. Hopefully it won't get that far as Jake's attorneys intend to file a Motion to Terminate the case as soon as it is set for hearing. Stay tuned.

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