The United States Citizenship and Immigration Services (USCIS) is strict about who it grants entry. The agency views foreign nationals with a criminal record negatively and will not admit individuals who have committed certain criminal offences. Therefore, Canadians applying for a green card or permanent residence with a criminal history are at a distinct disadvantage.
However, depending on the offence committed, there are exceptions in which USCIS officials might grant an applicant permanent residence status. Waiver provisions in United States (US) immigration law also permit some applicants to petition the agency to pardon certain offences and issue a green card.
Crimes That Make Applicants Inadmissible to the US
The Immigration and Nationality Act (INA) specifies three categories of criminal convictions that make an applicant inadmissible to the US – drug violations, crimes involving moral turpitude (CIMTs) and aggravated felonies.
The term “convictions” in this context varies from that in criminal law. It is defined more broadly and refers to an individual’s admission of guilt via a guilty plea or the pronouncement of guilt by a judge or jury.
Applicants convicted of any crime involving illicit drugs are inadmissible to the US and are ineligible to obtain a green card. This includes drug trafficking, aiding and abetting in the drug trade, drug use and drug possession.
Crimes Involving Moral Turpitude
There is no precise definition of what constitutes CIMTs, but guilty individuals are likely to be considered inadmissible to the US. Judges from all across the country decide which offences fall within this category. Generally, such offences involve malicious intent or an intent to cause harm. Murder, fraud, arson, embezzlement and robbery are among the crimes deemed CIMTs thus far.
CIMTs are especially problematic for applicants with a criminal history. A US immigration lawyer is best placed to help determine whether your specific offence fits within the realm of a CIMT.
Aggravated felonies, unlike those in criminal law, are any violations that the US Congress deems as such. Rape, murder, money laundering and many seemingly trivial offences like theft and failure to appear in court are aggravated felonies under federal immigration law. The crimes carry harsh consequences for those convicted, including inadmissibility to the US.
Other crimes specified by the INA that may result in a rejected application are:
- Human trafficking
- Money laundering
- Prostitution and commercialized vice
Applicants convicted of certain crimes can take advantage of several exceptions on the grounds of inadmissibility. For instance, individuals with a single conviction of marijuana possession of 30g or less can petition the USCIS to overlook the offence and wave inadmissibility.
Certain CIMT may also be disregarded if:
- The applicant served six months or less for the crime
- The crime carries a maximum sentence of one year or less
- Five years have passed since the conviction
- The applicant committed the offence as a minor
Waivers of Inadmissibility
Section 212(h) of the INA allows individuals who have committed certain inadmissible crimes to request forgiveness for those crimes. Some drug violations and CIMTs fall into this category. Waivers may be granted under the following circumstances:
- If an applicant’s rejection would result in extreme hardship for a spouse, child or parent who is a US citizen or permanent resident
- A conviction is at least 15 years old
- The applicant has gone through rehabilitation and is not a security threat to the US
Waivers are purely discretionary, and while an individual may qualify for such relief, receiving a green card is not guaranteed.
Help With Your Green Card Application
Applying for permanent residence in the US can be difficult, especially if you have a criminal record. Allow our immigration expert at Silver Immigration to help you. Mr. Silver is adept at navigating the US immigration process and has experience operating in Canada and the US.