WAIVERS, IMMIGRATION CONSEQUENCES OF
CRIMINAL MATTERS & REMOVAL DEFENSE      back to list

United States immigration law includes a long list of grounds of “inadmissibility,” which means that an individual can be denied admission to the United States as either a nonimmigrant or an immigrant and can be denied adjustment of status (a “green card”). This list includes both non-criminal and criminal grounds. The non-criminal grounds include previous immigration violations, unprosecuted acts of misrepresentation, certain medical conditions, insufficient financial support, application of the two-year home residency requirement for certain J-1 visa holders and security-related issues. Criminal grounds include both the commission and conviction of various crimes such as those involving fraud, perjury, theft, personal violence and controlled substances. Some grounds of inadmissibility contain exceptions, for example there is a “petty offense” exception that might apply to certain minor criminal convictions. It is important to consult with a knowledgeable immigration attorney who can determine whether any ground of inadmissibility might apply prior to filing an application or petition with the USCIS or at the consulate abroad.

A waiver is available to an individual seeking a nonimmigrant visa, which will waive almost all grounds of inadmissibility, except those relating to security, foreign policy considerations and participation in Nazi persecutions. It is within the discretion of the USCIS to grant or deny a nonimmigrant waiver, or an Immigration Judge in the event that the proceedings are conducted before an Immigration Judge.

Waivers are also available to individuals seeking immigrant visas or adjustment of status in the United States. There are a limited number of waivers available that cover a narrow range of the offenses that make up the crime-related grounds of inadmissibility. An applicant for an immigrant visa also can seek a waiver of prior fraud or misrepresentation, certain medical conditions, and the two-year home residency requirement for J-1 visa holders. These waivers require the applicant to have a qualifying relative (U.S. citizen or lawful permanent resident) who will suffer hardship if the waiver is not granted. Such waivers generally require a clear explanation of eligibility and extensive supporting documentary evidence. The grant or denial of an immigrant waiver is within the discretion of the USCIS, or an Immigration Judge, in the event that the proceedings are conducted before an Immigration Judge.

Conviction of criminal charges can have serious consequences for nonimmigrants and immigrants. As the result of certain convictions, individuals already admitted to the United States could be faced with grounds of deportability that could lead to removal from the United States and lengthy, perhaps permanent, bars to returning to the U.S. The list of criminal activities that could lead to deportation is long and complicated. Convictions for relatively minor crimes, including misdemeanors, can subject an individual to deportation. U.S. Immigration and Customs Enforcement is increasing its cooperation with police and local authorities to identify people who have been convicted of offenses that constitute immigration violations and are subject to being placed in deportation proceedings.

Once an individual is placed in removal proceedings, the result of the proceedings is not foregone. The individual is given an opportunity to challenge the charges made by the government before an Immigration Judge, and appeals are available to challenge the conclusions reached by the Immigration Judge. Waivers are also available for criminal grounds of deportation, particularly where the conviction occurred many years ago.

Paparelli & Partners LLP can provide representation in the most complex immigration cases involving grounds of inadmissibility, criminal matters and removal issues. Our team of experts is prepared to provide analysis of criminal issues in preparation for applications for immigration benefits and to develop comprehensive waiver applications when necessary.