A Criminal Record Can Negatively Affect Immigrant Visa Process
Having a criminal record will not automatically bar you from receiving an immigrant visa, but depending on the charge, it will make it much more difficult. There are two scenarios that we need to look at: first, the US citizen having a criminal record and second, the beneficiary having a criminal record. Each of these situations will have a different outcome depending on the severity of the conviction.
Notice how I said conviction and not just a charge. If you haven’t been convicted yet, you will have an easier time getting through the immigration process. However, if you have already been convicted, that is a entirely different story. You will be required to provide information on the immigration application about your criminal history and any felony convictions. This applies to both the petitioner and the beneficiary. It is always in your best interest to be truthful about everything because they will find out during the background check.
Only recent convictions will be considered but you must state your entire criminal history.
So let’s take a look at what types of crimes that are classified as “crime of moral turpitude” under immigration law. Before we can do that we need to know what exactly those two terms actually mean.
- Crime of Moral Turpitude: conduct that is considered contrary to community standards of justice, honesty, or good morals.
What Is In Your Criminal Record?
Okay, first you need to find out exactly what is in your criminal record before you apply for an immigration application. You will be in a better place by know exactly what will come up later on during the interview (or if you receive an RFE). The process of getting your record can be time consuming but it is worth doing to begin the process correctly.
Run a complete national criminal background check on yourself or the beneficiary (if they have a record). These background checks are available online for a fee but make sure that you are using a reputable company. Once you have a list of all of your arrests and convictions, you should contact each court with your case number to get the actual file. It is important to get the “charging document” or “complaint” or “information”.
This will describe the actual crime you were being charged with. It is important to get the “order”, “sentence” or any other document which shows that a case was dismissed or a sentence was imposed. Lastly, if you were sentenced, you will need documentation of this to show that you have successfully completed your sentence. You can get this from the court, police department, or probation office, in the city where you were arrested.
Crimes That Fall Under Moral Turpitude
Interestingly, no one is ever charged with a “crime of moral turpitude” because it is a phrase to describe to many types of crimes. The definition that is commonly used by the Board of Immigration Appeals (BIA) is “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”
So, now that we know the definition, let’s look at some crimes that fall under this catch-all phrase:
- voluntary manslaughter
- involuntary manslaughter
- spousal abuse
- child abuse
- aggravated assault
- animal fighting
- fraud, and
This is not a complete list and you will need to look at your specific criminal record to find out if any of your past convictions fall under any of these. You must disclose any and all arrests and convictions even if the charges were ultimately discharged.
Conditional discharges are convictions for purposes of U.S. immigration law.
US Citizen Has A Criminal Record
Even though most of the immigration documents are about the beneficiary, the US Citizen must answer criminal record related questions. Based on the severity of the convictions, there may be an impact on the process of their spouse’s/fiance(e)’s immigration to the US.
If the US Citizen’s criminal record includes anything related to past immigration fraud, there is high chance that your CR-1 visa petition will be denied on the basis. USCIS takes immigration fraud very seriously and if they even suspect that your relationship isn’t genuine, you will need to do whatever it takes to prove that it is.
Multiple felony convictions by the US citizen may not impact the immigration process, unless the convictions are related to sex crime involving a child. Having a conviction related to child sex crime will result in petition denial, whether for a fiancée, fiancé or spouse. However, you will have the option to appeal this decision, but I would recommend getting help from an immigration attorney who has successfully appealed a similar case.
Note: you will need to apply for the Adam Walsh waiver in this case.
Beneficiary Has A Criminal Record
Your fiance(e) or spouse will likely be required to get a copy of their criminal record from all countries they lived in for than 6 months (after age 16) and this will be used to determine whether they qualify for a visa. For the USCIS to find a beneficiary inadmissible, the conviction must be for a statutory offense which involves moral turpitude.
Moral turpitude is determined by the nature of the offense for which the beneficiary was convicted, and not by the acts underlying the conviction (see the list above). As you can see, how USCIS determines ineligibility of the beneficiary due to a felony conviction is a very complicated process.
If you are beginning the K-1 or CR-1 visa process and have been convicted of a felony, read up on the IMBRA requirements.