Waivers For Criminal Grounds

If you’ve been told that you are inadmissible, you may be eligible for a waiver to gain admission to the United States. It is worth exploring this option.

Inadmissibility Based on Criminal Grounds

You’ll likely need an Extreme Hardship Waiver if you’ve been convicted for the following types of offenses within the last 15 years:

A CRIME INVOLVING MORAL TURPITUDE

A crime involving moral turpitude (CIMT) is basically a catch-all inadmissibility for crimes that have certain elements. Because of the broad nature of the definition, and the differing interpretations of moral turpitude, many crimes fall within this category. To determine whether a specific offense is a crime involving moral turpitude, one must understand the definition that is laid out in case law, especially within their jurisdiction. Under case law, a CIMT has been defined as a depraved, immoral or reprehensible act. For example, crimes involving moral turpitude include intentional bodily harm, fraud, tax evasion and lewd behavior. Keep in mind a CIMT does not have to be a felony. It could be a misdemeanor as well. Also, the sentence does not determine a CIMT. An attorney should carefully evaluate the criminal offense to determine the right course of action. There are two possibilities when it comes to crime involving moral turpitude. First, argue the crime is not a crime involving moral turpitude. This involves a complex legal analysis based on case law to show that the crime does not fit the definition of a depraved, immoral or reprehensible act. Second, argue the crime involving moral turpitude falls within an exception to the inadmissibility ground.

There are exceptions to the CIMT inadmissibility which are the Petty Offense and Youthful Offender exceptions. Under the Petty Offense exception, a person who commits one crime involving moral turpitude, who was sentenced to less than six months for an offense punishable by imprisonment of one year or less is not inadmissible. The Youthful Offender exception is applicable when a person committed only one CIMT when they were under the age of 18, and five years has passed since the conviction or release from imprisonment.

A CONTROLLED SUBSTANCE WITH POSSESSION 30G OR LESS OF MARIJUANA

There is no waiver available for a crime involving a controlled substance unless there was a possession of 30 grams or less of marijuana. Whether or not you are inadmissible for a drug offense comes down to the nature of the crime and how it relates to the possession of one of the drugs on the federal controlled substances list. It is important to evaluate all aspects of the conviction and if possible get both a criminal and immigration attorney to determine the best course of actions to take before a plead of guilty or a conviction. Once the conviction is on the record for a crime relating to the possession of a controlled substance, negative immigration consequences may follow in fast pursuit.

TWO OR MORE CONVICTIONS WITH SENTENCE OF 5 OR MORE YEARS

If you have two or more criminal convictions (other than purely political) that results in an aggregate sentence of 5 years or more, then you’ll be found to be inadmissible and will need a waiver. It does not matter whether the convictions were in a single trial or scheme. What matters here is the number of convictions and the total years of the sentence for all the crimes.

PROSTITUTION RELATED CRIME

If you’ve been convicted for prostitution or commercialized vice or you are coming to the United States to engage in prostitution or commercialized vice, then you’ll be found to be inadmissible. You’ll need the waiver.

A CRIME FOR WHICH YOU’VE BEEN GIVEN IMMUNITY FROM PROSECUTION

If you’ve committed a serious criminal offense pursuant to INA 101(h), been given immunity with the condition to leave the United States and you have not submitted yourself to the jurisdiction of the applicable court in the United States, you are inadmissible. You’ll need the waiver.

The Extreme Hardship Waiver

You may be eligible for an extreme hardship waiver, if you are the spouse, child or parent of a U.S. citizen or Legal Permanent Resident (LPR), and this U.S. citizen or LPR relative (qualifying relative) will experience extreme hardship.

The extreme hardship must not be yours but that of any or all of your qualifying relatives in the United States. Examples of extreme hardship include financial, medical, cultural circumstances (if relative is forced to move), or the threat of violence in the foreign country. It is helpful to include any extraordinary circumstances such as armed conflict and persecution in the country.

Discretion

keep in mind that extreme hardship is one requirement of the waiver. The officer must also weigh the favorable and unfavorable factors to exercise their discretion while making a decision. Favorable factors include your community service, rehabilitation, advanced education and consistent employment. Unfavorable factors include additional criminal or immigration violations, child support problems, financial and tax issues, all of which point to the applicant’s lack of responsibility as a good citizen.

Crimes over 15 years ago

The extreme hardship waiver is not necessary for criminal grounds of inadmissibility, if the criminal inadmissibility occurred more than 15 years before the submission of the immigrant visa application. However, this waiver must still be filed on Form I-601. You must prove rehabilitation and that your admission would not be against the U.S. national welfare. However, the decision to grant the waiver is based on the officers’ discretion in light of the factual circumstances in your particular situation. This lower standard does not apply if the crime is considered dangerous and violent. The higher standard of exceptional and extremely unusual hardship standard must be met for such criminal grounds.

It is important to consult an immigration attorney to prepare the waiver. At ST Law, I use my advanced knowledge of the legal requirements as well as my experience with waivers to prepare a good waiver application to increase the chance of success in each case.