Can I Come to the U.S. Even if I Have a Criminal Record?

behind-bars-76714-m.jpgMost foreign nationals who want to come to the U.S. for an extended period of time must apply for a visa. If the foreign national wants to work, he/she must find an employer to sponsor a work visa such as an H-1B, O-1, or L-1. If the foreign national wants to attend a U.S. university, the national must obtain an F-1 visa. And if the foreign national simply wants to visit the U.S. as a tourist, he or she must obtain a B-1/2 visitor visa. (Nationals of certain countries are exempt from the visitor visa requirement and can instead enter the U.S. without a visa under the Visa Waiver Program. For more information about this program, visit the U.S. Department of State website here.)

To obtain any of the above visas, the foreign national must go to the U.S. embassy and attend a visa interview. The visa interview is usually relatively simple but can become complicated if the interviewing embassy officer discovers that the foreign national has a criminal record. Depending on the severity of the crimes committed by the foreign national, the embassy officer may deny the visa and inform the national that he or she is "inadmissible" to the United States, meaning the person is barred from entering the country.

Luckily, U.S. immigration law also allows a foreign national who wishes to travel with a nonimmigrant visa to obtain an "inadmissibility waiver," meaning that a foreign national who has a criminal record can obtain advance permission from the U.S. government to enter the country, thereby "waiving" the criminal ground of inadmissibility.

In order to receive the waiver, the foreign national must apply for it at the U.S. consulate in the national's home country. The waiver is called a 212(d)(3) waiver because this is the provision of immigration law that grants the waiver, and it is also referred to as a "Matter of Hranka waiver" because this Board of Immigration Appeals (BIA) case discussed the specific requirements of the waiver.

In the Matter of Hranka case, the BIA created three criteria by which a U.S. consulate should evaluate a waiver request. These criteria are the risk of harm to society if the foreign national enters the country, the severity of the foreign national's criminal record, and the foreign national's specific reasons for wanting to enter the United States.

In order to maximize a waiver applicant's likelihood of approval, the applicant or the applicant's attorney should prepare the waiver application around the three criteria, such as by addressing each criterion in a personal affidavit and submitting proof of the applicant's contributions to his or her home society, signed attestations from friends and family regarding the applicant's good moral character, evidence of professional or academic accomplishments, and so forth.

Once the waiver application is complete, the foreign national submits the application to the U.S. consulate. An officer at the consulate will review the waiver application and approve or deny it. If approved, the officer will send the waiver application to the Admissibility Review Office (ARO), which is located in Washington, D.C. The ARO makes the final decision on the waiver application, and if the application is ultimately approved, the ARO will send notification of the waiver approval back to the consulate in order for the consulate to issue the nonimmigrant visa.

Inadmissibility issues and waivers can be very complex issues. Call our office today at 650-293-0270 to speak to a skilled immigration attorney about your case.

Additional Blog Posts

USCIS Announces Provisional I-601 Waiver, Silicon Valley Immigration Lawyer Blog, January 16, 2013
New Obama Directive to Aid Parents in Deportation Proceedings, Silicon Valley Immigration Lawyer Blog, August 13, 2013

Work Visas / by Michelle Gee