By Michael H. Markovitch, Esq. on November, 15, 2015
Foreign nationals quite often contact our office asking us what can be done when they want to come to the United States but they have a criminal record. This article will address this situation and provide the reader with a basic understanding of what one can do.
In order to visit the U.S., foreign nationals must in many cases (where entry on the Visa Waiver Program isn't available from their country) obtain visitor visas (B visas) or student visas (F-1 or M-1 visas) or business visas (H-1 or E or L or TN visas) from the U.S. consulate in their home country or a port of entry.
Although such visas are typically not difficult to obtain as long as the qualifications are met, if a foreign national has a criminal record the U.S. consulate or port of entry may very likely deny the visa. The reason for this is that U.S. immigration law states that foreign nationals with criminal convictions are "inadmissible" to the U.S. – meaning that they are not allowed to enter the U.S. due to their criminal record.
However, U.S. immigration law also provides for an inadmissibility waiver. This waiver, if granted by the U.S. government, allows a foreign national to enter the U.S. notwithstanding a criminal record – effectively forgiving the criminal inadmissibility ground and treating the foreign national as if the individual did not possess a criminal record.
This article explains how a foreign national can obtain an inadmissibility waiver in order to come to the U.S. in spite of having a criminal record. We will address summarily address the waiver-application process.
Criminal inadmissibility grounds apply to all foreign nationals seeking to enter the U.S. in any nonimmigrant status. Thus, if you are planning on coming to the U.S. as a student (with an F-1 visa) or to work temporarily (with an H-1B visa, O-1 visa, or other work visa) and you have a criminal record, you will likely be required to obtain a waiver before you can successfully get a visa to enter the United States.
How Do You Get a Waiver?
In order to obtain a waiver, you must apply at the U.S. consulate in your home country. This type of inadmissibility waiver (for foreign nationals trying to come to the U.S. with a nonimmigrant/temporary visa) is called a 212(d)(3) waiver because it's from Section 212(d)(3) of the U.S. Immigration and Nationality Act (I.N.A.).
212(d)(3) waivers are granted solely in the discretion of the U.S. government – no foreign national has a right to receive a 212(d)(3) waiver. In the immigration case Matter of Hranka, the Board of Immigration Appeals (BIA) set three criteria for the government to evaluate when processing waiver requests. These are:
1. The risk of harm to society if the foreign national is admitted.
2. The seriousness of the foreign national’s prior immigration law or criminal law violations, and
3. The foreign national’s reasons for wishing to enter the U.S.
The BIA did not give many details on these factors nor further guidance on how the government should weigh them against each other. (Because of this ambiguity, it can be quite difficult to predict whether a particular foreign national’s waiver application will be approved).
However, the BIA did state that the reasons for wishing to enter the U.S. (the third criterion) do not have to be “compelling.” This means that the government can approve a waiver request if the foreign national is only seeking to enter the U.S. in order to visit Disneyland, see the Grand Canyon, and so forth. The foreign national need not have an emergency reason (such as visiting a deathly ill U.S. relative) in order to obtain a 212(d)(3) waiver.
You must prepare your waiver application with these three criteria in mind. Usually it is easiest for foreign nationals to address each criterion in a written statement. First, you should explain in detail why you do not pose harm to the U.S. society. A good way to meet this first criterion is by citing how you contribute to your community in your home country, such as through your work, volunteer activities, church, and the like. You can also include supporting documents such as letters explaining your good moral character from members of your community. However, the exact materials that should be included with a waiver application vary from case to case depending on the foreign national’s circumstances.
Second, you must explain that your previous criminal conviction was not serious enough to justify prohibiting you from entering the United States. Depending on the conviction, this argument can be tricky to make and is wholly dependent upon your individual circumstances -- you will need to be persuasive. If, for example, your conviction is for petty theft eight years ago, you can explain that your conviction was an isolated incident, that you were young/immature when you committed the theft, and/or that you have never been charged with or convicted of another crime since.
Finally, you must explain your reasons for wanting to enter the United States. Be as detailed as possible and explain not only what you want to do in the U.S. but also why you want to do it. For example, if you want to study in the United States or visit family or tour the country, you should state the reasons in somewhat of a detailed fashion. The purpose of this is to basically demonstrate to the U.S. government that you have predetermined plans for your trip to the U.S.
How to Apply for the Waiver
To apply for a 212(d)(3) waiver, you have to submit your waiver application to the U.S. consulate in your home country. If you know that you have a criminal record, you should bring the waiver application with you to the consulate when you go for your visa interview. In rare circumstances, you may not know that you are inadmissible due to a criminal conviction and you will find out about the inadmissibility at the visa interview. In these situations, the consular office should inform you of the inadmissibility, and you will be able to reschedule the interview for a later time. At your second interview, bring your waiver application to give to the officer.
A consulate officer will review your application and will make an initial determination on your waiver. If the officer recommends that the U.S. government approve your waiver, the officer will send your application to the Admissibility Review Office (ARO) in Washington, DC. The ARO makes the final determination on your application. Once the ARO approves your application, it will return the application and a notice of approval to the U.S. consulate in your home country and the consulate will issue your visitor visa. Please note that this process can take several months to complete.
If the ARO denies your waiver application, you can appeal the denial to the BIA. However, because it typically takes a long time for the BIA to make a decision on appeals, practically speaking it is faster to reapply for the waiver and hope that the ARO will approve your application the second time. You are permitted to seek a visa a second time if it was denied when you attempted to do so peviously.
For further information or questions you may have, please do not hesitate to contact The Law Offices of Michael H. Markovitch.