Can I get a Marriage-Based Green Card if I have a Criminal Conviction?

As a cross-border immigration lawyer based in Windsor, Ontario, Christina Loebach helps couples who live on opposite sides of the Windsor-Detroit border reunite and live together. This post considers the question - can I get a green card through marriage if I have a criminal record?

Whether applying for a marriage-based green card via consular process or adjustment of status, the issue of criminal disclosures will come up. USCIS will do criminal background checks for both the U.S. sponsor and the green card applicant as part of the marriage-based green card process. The government requires you to disclose absolutely every interaction you’ve had with law enforcement, both inside and outside of the U.S., with the sole exception of traffic violations. Even if the charges were dropped or your record was expunged, you must be honest and tell them about it. The consequences of not reporting it are very severe - lying, or misrepresenting, will make you ineligible for a green card. When in doubt, schedule an appointment with an immigration lawyer and ask them. 

In the U.S., only certain types of criminal convictions will result in your being criminally inadmissible. These are aggravated felonies, crimes involving moral turpitude, and crimes involving illegal drugs. 

Aggravated Felonies

Under the “aggravated felony” ground, an applicant who has been convicted of an aggravated felony on or after November 29, 1990 is permanently barred from naturalization. The full list of crimes that constitute aggravated felonies is listed in Chapter 4 of the USCIS policy manual within the Good Moral Character section. Some offences will require a term of imprisonment of at least 1 year to qualify as an aggravated felony in the immigration context.

Crimes involving Moral Turpitude (CIMT)

Crimes involving moral turpitude is a very subjective category, and essentially encompasses any crime involving “vicious and evil intent”, which is vague and often ambiguous. Moral turpitude is a category to label a crime, and does not define the crime itself - meaning the Board of Immigration Appeals can technically assign the moral turpitude designation to any crime it wants. Since criminal convictions in the United States are usually handled on a state-by-state basis, unless the crime crosses state lines or is a federal offence, what constitutes “moral turpitude” may vary from state to state. Offenses that may be considered to be crimes involving moral turpitude include:

• Murder

• Voluntary manslaughter

• Domestic violence

• Spousal abuse or child abuse

• Kidnapping

• Paternity fraud

• Rape

• Incest

• Failure to register as a sex offender

• Animal cruelty

• Conspiracy

• Felony hit-and-run

• Theft

• Perjury

• Prostitution

• Driving while intoxicated without a license

Crimes involving Illegal Drugs

Another ground for US criminal inadmissibility is violation of any controlled substance law - basically, foreign or domestic laws relating to illegal drugs. As a reminder, even though marijuana has been delegalized in several US states, it is still a Schedule 1 substance under the federal Controlled Substances Act. Non-citizens who use marijuana or are arrested for marijuana related crimes could be deemed inadmissible. The only exception to this rule, under the Immigration and Nationality Act, is if you only have one drug conviction and it was for possession of marijuana for personal use, 30 grams or less. That being said, even if you qualify under this exception, you’ll still need a waiver.

If you have a criminal record, is all hope lost for your immigrant petition? Not necessarily. In some cases, you may be able to apply for a waiver of inadmissibility, provided you can show that your admission to the U.S. will not endanger anyone, and that your U.S. citizen or green card holder spouse would experience extreme hardship if you are not allowed to live in the U.S. Waivers of inadmissibility are only available for some crimes. 

For those applying via consular process, you can submit your waiver of inadmissibility application during your green card interview at the U.S. embassy or consulate. If you are applying from inside the U.S. via adjustment of status, you can file your waiver request at any stage of the process: with your I-130 petition, during processing, or at your interview.

Especially in the Windsor-Detroit area, it’s common for Canadians and Americans to fall in love and get married. Christina Loebach is licensed to practice law in both Canada and the United States, and loves working with clients who are considering sponsorship on both sides of the border. If you would like Christina to provide legal advice tailored to your situation, please schedule a consultation.