Criminal Inadmissibility & Waivers

There are several categories of excludability from the United States. Some of the more common criminal grounds of inadmissibility are set out below. If it is determined that you fall under one of these categories, and you are presently outside the United States, you will be unable to enter the United States and will be ineligible to receive a visa. However, under certain circumstances described below, you may qualify for a waiver of inadmissibility.

I. Moral Turpitude Offences

Aliens excludable from admission to the United States include those convicted of a “crime of moral turpitude” (CMT). fn1 “Moral turpitude” means conduct that is inherently base, vile or depraved, or contrary to the accepted roles of morality and the duties owed between one’s fellowman or society in general. Purely political offenses are not included in this ground of exclusion. fn2

There are two (2) statutory exceptions to this ground of exclusion, as follows (generally):

  • JUVENILE CONVICTION EXCEPTION: Where the alien committed only one (1) CMT when the alien was under 18 years of age, and the crime was committed more than five (5) years before the date of application for a visa and the date of application for admission to the United States; or
  • PETTY OFFENCE EXCEPTION: Where the alien has committed only one (1) CMT where the maximum penalty possible for the crime did not exceed one (1) year of imprisonment and, where the alien was not sentenced to imprisonment for a term greater than six months.

II. Multiple Criminal Convictions

Also excludable are aliens convicted or two (2) or more offenses, regardless of whether or not the convictions arose from a single trial or arose from a single scheme of conduct involving moral turpitude, and regardless of whether the offenses actually involved moral turpitude, if the aggregate sentence of confinement is five (5) years or more.

III. Controlled Substance Offences

Also excludable from admission to the United States are aliens convicted of a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled substance. fn3 An attempt or conspiracy to commit such a crime is included in this ground of exclusion.

IV. Trafficking in Controlled Substances

Also excludable from admission to the United States are aliens who have been involved in the illicit trafficking in controlled substances (including assisters, abettors, conspirators or colluders with others. Actual conviction is not required, and a decision to exclude can be made on the spot by a Consular Official or Immigration Official.

WAIVERS of Certain Criminal Grounds

a.) Nonimmigrants

In many cases, it is possible to obtain a waiver of inadmissibility that permits an otherwise inadmissible alien to enter the United States for (even as a temporary worker). In deciding whether or not to issue such a waiver, the U.S. government will weigh the following three factors:

  • 1. the risk of harm to society if the applicant is admitted;
  • 2. the seriousness of the applicant’s prior violation(s) of immigration or criminal law, if any; and
  • 3. the nature of the applicant’s reasons for seeking entry.

Presently, if granted, such a waiver of inadmissibility will be valid for up to up to five years, after which a new application must be submitted for adjudication.

b.) Immigrants

A waiver is available for most criminal grounds of exclusion for intending immigrants. However, the US government cannot issue a waiver for murder, criminal acts involving torture or controlled substance trafficking offenses, regardless of how much time has passed since the conviction, and regardless of rehabilitation of the alien. Further, the waiver is available for controlled substance offenses (not involving trafficking) only when there has been only a single offense involving the simple possession of 30 grams or less of marijuana.

Ortega-Medina & Associates has over 10 years of experience representing individuals before the United States government in their waiver applications. Due to the firm’s careful screening of its waiver candidates, it enjoys a very high rate of success in these matters. Additionally, in the event of a denial, Ortega-Medina & Associates can prepare and argue an appeal of the matter before the appropriate appellate body. Please contact us to discuss your matter.

[1] Also excludable are those aliens who admit they committed acts that constitute the essential elements of a crime involving moral turpitude.
[2] Political offenses are generally considered to be acts taken with others as a part of war, insurrection or rebellion in an attempt to replace the legal authority.
[3] This category of inadmissibility also includes aliens who admit to committing acts that constitute the essential elements of a law or regulation of a State, the United States or a foreign country relating to a controlled substance.