Many aliens wonder if you can really get a Green Card with a misdemeanor in your criminal records. In this blog we clear all the doubts regarding this topic.
Many aliens dream of obtaining a Green Card in the US. However, some face more obstacles than others and a criminal record could complicate their options. Therefore, our immigration lawyers in New Jersey are ready to help you.
Can you really get a Green Card with a Misdemeanor In The US In 2023?
From the outset, fixing papers if you have a misdemeanor can be complex. Therefore, the first thing an alien should do is consult an immigration attorney to help them with their situation.
If an undocumented alien commits a misdemeanor, they are at risk of being arrested by Immigration and Customs Enforcement (ICE).
USCIS is responsible for checking the criminal records of aliens applying for a Green Card. Therefore, it should be noted that:
- USCIS will look for criminal convictions involving moral turpitude, drug-related, and aggravated felonies.
- If USCIS finds the alien inadmissible for a Green Card, they may be able to apply for a waiver of inadmissibility to the United States.
- An application for a waiver of inadmissibility must show that the alien residing in the US will not put anyone in danger.
- If the alien has a US citizen spouse or Green Card holder, it must be shown that the spouse would face extreme hardship if the alien is unable to live in the country.
In the US, criminal laws frequently intersect with immigration laws, when this happens it is called “Crimmigration”. In our blog you will find an article where we explain this term in great detail.
How Can I Get A Green Card If I Have A Criminal Record?
Can a misdemeanor affect my Green Card application? You should know that the most important thing when it comes to arranging the papers is to be honest during your application.
- Both Form I-485, Application to Register Permanent Residence or Adjust Status, and Form DS-260 ask the alien questions about their criminal history.
- These questions are focused on money laundering, drugs, human trafficking , prostitution and others.
- It is important to read the questions carefully and answer them correctly. To support the answers, it is necessary to provide adequate documentation about them.
- It is essential not to lie or hide information for fear of rejection. Such actions could be grounds for denial.
Aliens who have had their Green Card applications denied may be placed in removal proceedings if they travel to the US.
If you have a criminal record, the best thing you can do is contact our Latina attorney Carolina T. Curbelo . She will tell you what documents you need to collect for these processes.
Not sure if you are in removal proceedings? Check our blog on how to know if I have a deportation order in the US to find out if you are in this scenario.
Why Can A Misdemeanor Lead To Inadmissibility?
In some cases, an individual is not allowed to enter or remain in the United States, even if they are eligible to do so. This is known as “grounds of inadmissibility” and prevents the obtaining of some of the different types of US visas or Green Card.
- Under 8 USC § 1182, various crimes are included that bar an alien and make them inadmissible to the US.
- Felonies such as terrorism or murder disqualify a foreign national for a US visa or Green Card.
- Misdemeanors, regardless of whether the individual is serving a jail sentence, could make them inadmissible to the US. Therefore, a misdemeanor record could prevent you from obtaining a visa or Green Card.
Verifying the admissibility of an alien is not a simple task. In fact, a decision of inadmissibility depends on whether the offense matches one of the existing descriptions in the law. Usually, it will most likely be a crime involving moral turpitude.
1# A Misdemeanor Can Still Be A Crime Of Moral Turpitude
Most misdemeanors that make an alien inadmissible fall under the immigration law concept of moral turpitude (CMT or CIMT).
Generally, a crime of moral turpitude involves fraud, moral turpitude, violence, or an attempt to commit any of these crimes.
2# An Alien May Be Inadmissible Based On A Misdemeanor Without An Actual Criminal Conviction
An alien who has never been convicted of a misdemeanor or other crime may be considered inadmissible. A common example of this is the following:
- An alien was recently arrested for possession of cocaine.
- The alien was found not guilty based on a procedural error.
- However, the information filed in the case could lead to the determination that the alien is a drug addict.
If the conviction is expunged or dismissed after completion of community service or probation, it may still be considered a conviction for immigration purposes. The same way:
- If an alien has been charged with a crime and their case has not been resolved, the chances of them receiving a visa are low. This remains until a court makes a decision on the case.
- Pursuant to 21 USC §802, if an alien is arrested in connection with a controlled substance, immigration authorities will have reason to believe that the immigrant has engaged in drug trafficking.
- If an immigration officer has information about this available, they should indicate that the alien is or was involved in drug trafficking. If so, the alien, the spouse and their children will not be eligible for a visa or Green Card.
3# Misdemeanor Drug Offenses Have Specific Grounds Of Inadmissibility
A drug possession conviction; no matter how small the amount of it, it will almost always be a ground of inadmissibility. A series of minor drug-related offenses may lead to the conclusion that the individual:
- Is a drug addict, or
- A drug dealer.
Regardless of the causes, both lead to the individual being deemed inadmissible to the US.
4 # Comparison Of The Sentences Of A Misdemeanor With The Grounds Of Inadmissibility By US Officials
When it is decided that a misdemeanor makes the individual inadmissible to the US, the officer reviewing the case will look at the nature of the crime. This means that:
- The state or country where the crime was committed will be reviewed.
- The section of the immigration law related to inadmissibility will be reviewed to determine if the crime:
- Is it serious enough to be a CIMT, or
- Coincides with a drug-related ground of inadmissibility.
Did you know that there is a legal process that allows an individual to vacate their conviction or adjust their sentence? In our article on post-conviction relief for immigration purposes you will find all the required information about this topic.
Types Of Misdemeanors That Can Make An Alien Inadmissible To The US
Generally, these are some of the reasons why an immigrant may be considered inadmissible if they commit a misdemeanor in the US:
- Misdemeanor burglary.
- Petty theft.
- Misdemeanor domestic violence.
- Drug sales solicitation.
- Possession of 30 grams or less of marijuana.
- Sale or possession for sale of drugs.
- Other offenses that give immigration officials reason to believe the individual is a drug trafficker.
- Other offenses related to controlled substances defined by the federal government.
In addition to these causes, there are crimes such as disorderly conduct. If an alien has multiple arrests for this behavior, they could be denied a visa.
Have you been a victim of domestic violence or abuse in the US? There are two visas that protect alien victims of these crimes. Read our articles on what is a U visa and the VAWA visa.
How To Avoid Inadmissibility Through A Petty Offense or Youthful Offender Exception
Even though an individual is convicted of a crime of moral turpitude, some of these may avoid inadmissibility. This can be through a petty offense or youthful offender exception.
- Petty offense exception. When an individual’s maximum sentence is exactly one year or less and the individual was sentenced to no more than 6 months in prison, this exception exempts the ground offense from a CIMT.
- It is worth mentioning that this exception only covers crimes of moral turpitude and not drug-related crimes.
- Youthful offender exception. This exception protects those under 18 years of age when they have committed a crime. However, this exception does not apply if:
- The minor has been tried and convicted as an adult who committed a felony for the use of physical force against persons or property, or
- It is a crime of drug trafficking.
Can I Be Deported If I Have A Green Card?
The US Immigration and Nationality Law states that an alien can be deported from the United States even if they have a Green Card.
- Permanent residents who have successfully completed the process to obtain US citizenship and are now citizens cannot be deported.
- However, if the individual receives a criminal conviction before attaining citizenship, immigration officials may initiate removal proceedings against them.
Are you days away from applying for citizenship? We recommend that you read our article on mistakes when completing the N-400 naturalization application and thus avoid making them.
Can A Green Card Holder Go To Jail In The US?
Green Card holders should be aware that their permanent resident status may be revoked if they are convicted of:
- An aggravated felony or,
- A crime involving moral turpitude such as perjury or fraud.
After this, the alien will have to leave the country and request re-entry. Such a process can take years and require multiple trips back to the US.
In addition, the criminal conviction may not be considered a felony at the time of sentencing.
However, immigration authorities may determine that it was after exhausting all possible appeals. If this occurs, it is possible that the immigrant’s permanent residence may be revoked.
Do you know how to appeal an immigration decision? Check our respective article where we delve into the subject.
Why Is It Important To Consult With Our Immigration Attorney?
In these cases involving a misdemeanor and immigration procedures such as the Green Card, it is key to consult with an immigration attorney, as some criminal defense attorneys do not fully understand immigration law. Therefore, they may recommend that you plead guilty.
- While pleading guilty to a misdemeanor may be a good idea for American citizens, it makes aliens a priority for deportation.
- This means that if you fall into the hands of ICE, you will not have the option of an immigration bond and you will not be released until you see an immigration judge and they decide whether you remain or leave.
- Also, no judge will give you residency if you have an open DUI or domestic violence case. Therefore, your situation can be further complicated.
In this article we have focused on answering the question on getting a Green Card with a misdemeanor. However, as we have seen, each individual scenario is different and requires a complete analysis to know the facts surrounding your case.
Call us today, send us an email or make an appointment at our office located in Ridgewood, New Jersey, so that we can begin examining your legal needs.