Introduction:
How does an alien fiance or spouse's criminal record affect immigration to the United States?
What kinds of Crimes are we talking about?
A previous criminal record may affect the ability of a fiance or spouse to immigrate to the US. The law has specific guidelines in it that may exclude some foreign fiances or spouses from entry into the US, if their crimes are of a certain type. The most common type of excludable crime is one of "moral turpitude." However, there are several other factors to be considered, and every case is slightly different.
A criminal record's impact on immigration, in general, depends on several things:
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the type of the crime: crimes of "moral turpitude" are more serious in nature and may cause exclusion from immigration to the US. |
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the age the person was when the crime was committed: in general, crimes committed before age 18 are not considered as serious, and under the age of 15 even less serious, however two moral turpitude crimes under the age of 18 may still cause exclusion. |
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the length of the sentence that was imposed: a sentence of 6 months or more makes the situation more complicated. |
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the amount of time since the crime was committed: over five years prior to immigration helps to some extent. |
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crimes involving controlled substance violations, even marijuana, are viewed very seriously, especially if the conviction was for drug trafficking. |
Here are some links that are most definitely recommended reading:
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travel.state.gov |
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americanlaw.com |
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criminalandimmigrationlaw.com |
Filing a Waiver
How Do I File A Hardship Waiver?
If you are an immigrant fiance or spouse with a criminal history, you should obtain and bring your court records with you to your visa interview, because the consulate will ask to see them. If you have the records with you, it helps to make things move faster. If your visa is denied, you may be eligible to file for a waiver. (but you cannot file for a waiver until you have been denied the visa) If you are reasonably sure that you will require a waiver, your US citizen fiance/spouse can go ahead and download the I-601 waiver form and compose a letter indicating why you should be granted the visa. Your US fiance/spouse should send the letter and form to you to take along to the interview. Then, if you are told you need to file the waiver, you will have the waiver form and letter all ready to hand in right at the interview, thus saving some more time.
The US citizen has to show to the satisfaction of the consulate that there is hardship to the US citizen because of your denial and why he/she cannot live in the foreign country instead of the US. There are several things that may validly be used as reasons in the letter that the US citizen writes for the waiver:
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U.S. citizen children who need schooling in the US. |
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U.S. citizen children who cannot leave the US due to previous spouse not granting immigration consent |
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U.S. citizen children who would have to stay behind in the US that you would not be able to visit frequently. |
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U.S. citizen inability to speak the language of the foreign country. |
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U.S. citizen's lack of employment in the foreign country. |
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U.S. citizen's need to care for aging parents or relatives in the US.
U.S. citizen's ownership of properties in the US that he/she does not want to sell or cannot sell for specific reasons. |
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U.S. citizen's preference that you want to live in the US because it is your native country and you are a citizen of that country. |
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excessive cost involved in moving your household members and goods to the foreign country, including plane fares and transport of goods. |
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U.S. citizen's financial loss due to the separation. |
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get character reference letters from anyone who can provide these for the immigrant fiance/spouse. |
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get letters from doctors, clergymen, and the like, regarding emotional suffering that the US fiance/spouse is experiencing as a result of the separation. |
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Any letters submitted are best notarized and should include the name, address, social security number, date and place of birth of the person writing the letter. |
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Below are cases which go into defining "extreme hardship", I suggest that you read and study these for more information on what kinds of things may be helpful in defining "hardship": --- 3380.pdf --- The Kao/Lin Case 5/4/01, a new decision that is worth reading --- The Agwu Okpa Case, 6/7/01, another new decision you will find informative |
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Remember: The goal is to show hardship to the U.S. Citizen, NOT to the immigrant fiance or spouse! |
The US citizen may file the waiver form without attorney assistance, however using an attorney may improve the chances of success, in order to be sure that the case is presented in the best light. Attorney assistance is generally recommended for filing a waiver.
What Does the Law Say About Crimes?
The following links provide additional information on the law regarding moral turpitude:
https://travel.state.gov/visa;ineligible.html
0940021aPN.pdf
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NOTE: The above information does not address the specific requirements for any given case and is not a substitute for the advice of an attorney.
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