It does not matter for how long you may have had your criminal records expunged, past crimes
could still become an issue when filing immigration applications. A record of having committed
crimes can greatly hinder a foreigner’s chances of obtaining a U.S. visa or a U.S. green card
(lawful permanent residence). It can even lead to deportation from the U.S.
Thus what is known as an “expungement” can look very attractive. It is the deletion of a
person’s entire criminal conviction record from any court, police record, or criminal justice
agency. Different U.S. states take different methods to expungement, but in general if the court
expunges your criminal record, then within the context of the criminal justice system, you are
considered to never have committed a crime at all.
In an immigration context, however, it is a different matter. Though expungement might appear
like a blessing in disguise, for immigration purposes a criminal conviction will always exist,
expunged or not. That said, if you do have a criminal record, you might still be able to immigrate
to the U.S. This is dependent on several factors such as facts of a case, the nature of a crime
and the sentence or conviction.
Effect of Expungement on Immigrating to or Visiting the U.S.
Anyone who has been convicted of a crime in either their home country or the U.S., might be
inadmissible to the U.S. Being inadmissible means that even if you meet the basic eligibility
criteria for a visa or green card, U.S. immigration officers can or must still refuse to let you enter
the country because of some condition in your past. Even if a criminal record is expunged, you
might still be found inadmissible because of a conviction.
However, immigration law provides various “waivers” of inadmissibility. If you apply for and are
granted a waiver, then you will be allowed to enter the U.S. Talk to an immigration attorney
about a waiver of inadmissibility.
Rules and Procedures for Nonimmigrant Visa Waivers
To obtain a nonimmigrant waiver (which allows the opportunity to obtain a temporary visa such
as B-1 or B-2 visitor visa or an H-1B visa to enter the U.S.), an applicant must prove to the U.S.
government that their entry would not threaten the country or its citizens. To do so, a waiver
application that addresses the following criteria must be filed:
● Any risk of harm to you would pose to the U.S. society
● The seriousness of your conviction(s) and
● The reasons for wishing to enter the U.S.
The Board of Immigration Appeals (B.I.A.) outlined these criteria in the immigration case known
as Matter of Hranka, so the nonimmigrant waiver is sometimes referred to as the Hranka waiver.
The U.S. Consulates at the respective foreigner’s home country can provide detailed
information on how to file a Hranka waiver application, and typically should be filed with the
consulate. If the U.S. Consulate recommends that the U.S. government grant a waiver, the
Consulate will forward the application to the Admissibility Review Office (ARO). If the ARO
grants the waiver, the U.S. Consulate will issue a visa and then authorization to enter the U.S.
will be granted.
Rules and Procedures for Immigrant Visa Waivers
A waiver will also be needed to enter the U.S. if you intend on immigrating (obtaining a U.S.
green card or immigrant visa). There is a waiver known as an I-601, Application for Waiver of
Grounds of Inadmissibility. To apply, the applicant must have a qualifying relative which means
a U.S. citizen or lawful permanent resident spouse, parent or child (the child must be both
unmarried and under the age of 21 to be a qualifying relative). Additionally, the qualifying
relative would suffer extreme hardship if U.S. immigration denied the applicant entry into the
U.S. If an applicant submits an I-601 waiver application at a U.S. Consulate overseas, it is
highly advised to talk to an immigration lawyer before applying for a waiver since not just
anyone can apply for a waiver and it involves a great deal of paperwork and drafting convincing
arguments.
Visit With Your Nearest Immigration Attorney
If a foreign national was convicted of a crime while residing in the U.S. lawfully or as an
undocumented person the government has every right to deport that person to their home
country. However, there might be a possibility to avoid getting deported but you must call a
seasoned immigration law expert who can help you. Contact Gambacorta Law Office at 847 443
9303 today.
