Waiver for Crimes that Disqualify a Noncitizen from a Green Card

Past criminal violations will certainly create significant problems for noncitizens attempting to obtain a green card. The most significant problem created by a past criminal offense is an offense that will disqualify a noncitizen from obtaining a green card. You can view our discussion of the different types of disqualifying criminal offenses including crimes involving moral turpitude here and aggravated felonies here.

Fortunately, there is a waiver that when approved will serve to waive past criminal offenses. Offenses waived by this waiver include:

• One or more crimes involving moral turpitude,
• Offenses engaging in prostitution,
• Two or more convictions with a total sentence imposed of five or more years,
• A single incident involving possession of 30 grams or less of marijuana, but no other drug related offenses.

The noncitizen will be able to waive these offenses if the noncitizen falls into one of the following categories:

• The noncitizen has a U.S. Citizen or legal permanent resident parent, spouse, son or daughter who will suffer extreme hardship if the noncitizen’s green card application is not approved.
• The offense occurred at least 15 years ago and the noncitizen can demonstrate that he is rehabilitated and approval is not contrary to the national interest.
• The only offense committed was a prostitution related offense and the noncitizen can demonstrate that he is rehabilitated, and approval is not contrary to the national interest.
• The noncitizen is a self-petitioner for VAWA relief and can demonstrate that the waiver should be granted as a matter of discretion. VAWA relief is a process for applying for a green card based on the noncitizen suffering abuse from a U.S. Citizen or legal permanent resident spouse. You can read our discussion about VAWA related relief here.

It is important to note that unless the noncitizen committed a prostitution related offense, the noncitizen is applying for the green card based on the VAWA law or the offense happened more than 15 years ago, the noncitizen’s waiver application must be based on the relationship to a spouse, parent or child and extreme hardship must be demonstrated.

First, the noncitizen must determine whether he will be applying for the green card from within the United States through the adjustment of status process or from an embassy or consulate abroad through consular processing. You can review our discussion of the adjustment of status process here. You can review our discussion about obtaining a green card through consular processing here.  If the case will be filed through the adjustment of status process, then immigration form I-601 is filed with the green card application before the United States Citizenship and Immigration Service, “USCIS” with evidence establishing eligibility for the waiver.

If the process will go through consular processing, the waiver by form I-601 will be filed also with USCIS, but after the initial interview before the consular officer when the officer establishes that the noncitizen is disqualified based on the criminal conviction.

If required to file the waiver based on the hardship of a family member, remember that the level of hardship is identified to be extreme hardship. The best case is when the relative suffers from an obvious illness or disability, but such is scenario is not required to establish such hardship. Other factors can be considered, like financial difficulties or other obligations created as a result of the noncitizen’s separation from the qualifying relative. You can view our further discussion about extreme hardship here.

Even if based on hardship, it is recommended to show rehabilitation since the waiver can still be denied out of a matter of discretion which is a balancing test performed by the adjudicator to weigh whether positive equities outweigh negative equities.

As most immigration cases, it is recommended that an experienced immigration attorney guide you in the case. An attorney will help the noncitizen determine if the noncitizen will in fact be disqualified based on the criminal offense and to help with preparation of the waiver if necessary.