Criminal inadmissibility: which offenses bar and which have waivers

Criminal history is one of the most complex immigration areas. Good news: not every crime makes you inadmissible. Bad news: some crimes —even minor in criminal law— can be fatal in immigration. This guide explains the key categories, when waivers apply, and when they don't.

The two key questions

For any criminal record, your attorney asks:

1. Is it a crime that makes you inadmissible? (keeps you out or denies a benefit)
2. Is it a crime that makes you deportable? (strips current status)

These are distinct concepts and may overlap. Read: deportation defense.

Criminal categories in immigration

1. CIMT (Crime Involving Moral Turpitude)

Generally includes:

• Fraud (bad checks, theft).
• Theft with intent.
• Assault with intent to cause serious harm.
• Sexual assault.
• Domestic violence with intent element.

NOT generally CIMT:

• Driving without license.
• Bad parking.
• Simple assault without intent.

2. Aggravated felony

The most serious immigration category. Despite "felony" in the name, it includes several crimes that are misdemeanors in criminal law if the sentence was one year or more, even suspended.

Examples:

• Theft with 1+ year sentence (including suspended).
• Aggravated assault.
• Drug trafficking (any amount).
• Sex crimes.
• Certain fraud over $10,000.
• Domestic violence with 1+ year sentence.

An aggravated felony generally:

• Has no waiver for inadmissibility or deportation.
• Bars cancellation of removal.
• Bars asylum.
• Can lead to expedited deportation.

3. Controlled Substance Offense

Any controlled substance offense: possession, distribution, paraphernalia. Even a single marijuana possession can be inadmissibility, although limited exceptions exist:

• 30 grams or less of marijuana for personal use may have 212(h) waiver.
• A single youth possession can be removed via expungement under certain conditions —but not generally in immigration.

4. Firearm offenses

Firearm-related offenses are grounds for inadmissibility and deportation.

5. Domestic violence, stalking, child abuse

Independent deportability grounds.

The "petty offense exception"

There's an important CIMT exception:

• Only one offense.
• Maximum statutory penalty: 1 year or less.
• Actual sentence: 6 months or less.

If you meet all three, the CIMT may not cause inadmissibility.

Available waivers

I-601 (general waiver)

Available for:

• CIMT (except aggravated felony).
• Fraud/misrepresentation with qualifying relative (citizen/resident spouse or parent).
• Some drugs (only 30g marijuana).

Requires showing extreme hardship to the relative.

Read: civil fines and fraud.

212(h)

Specific to CIMT (not aggravated felony) and 30g marijuana possession or less. Requires:

• Having citizen/resident relative, OR
• Crime more than 15 years old, OR
• Trafficking victim (VAWA).

212(d)(3)

Temporary non-immigrant waiver. Useful for tourist visas, temporary work. Not for green card.

245(i) and others

Not criminal waivers but may allow adjustment with limited history.

When there is NO waiver

Generally no waiver for:

• Aggravated felony.
• Drug trafficking.
• Human trafficking.
• Crimes against children sexual.
• Murder.
• Multiple CIMT exceeding petty offense.

What to do

1. Get your criminal records (don't rely on memory).
2. Get final disposition of each case (not just arrests).
3. Don't lie to USCIS. The question is "ever arrested" not "ever convicted".
4. Consult BEFORE filing any form.
5. If the case is old, consider post-conviction relief (vacating, expungement) with a criminal attorney.

The role of the criminal attorney

If you face criminal charges and have an immigration case, your criminal attorney must consult with an immigration attorney before any plea bargain. A sentence of 364 days vs 365 days can be the difference between staying in the U.S. or being deported.

Next steps

If you have any criminal record and want to immigrate or regularize status, [