Whether your Fiancé(e) has been arrested or convicted, the United States government may issue a denial for a K-1 Fiancé(e) visa.
If you want to bring your fiancé(e) into the U.S. on a K-1 visa to get married and possibly apply for a green card, and your fiancé has a criminal record, that fact is likely to trigger inadmissibility. In simple terms, your fiancé would not qualify for the visa or to enter the United States at all. This can even hold true for crimes that have been expunged (wiped off) someone’s police record.
Having said that, depending on the crime, it might still be possible to bring your fiancé(e) into the U.S. in one of two ways:
- A Fiancé(e) was convicted of only one crime and meets certain other criteria might qualify for the sentencing exception
- A Fiancé(e) who is ineligible for the sentencing exception might still be eligible to request a waiver of inadmissibility
How Will You Know Whether a Crime Triggers Inadmissibility
U.S. immigration laws are stern and even some misdemeanors can trigger inadmissibility. This includes most crimes that involve theft, drugs, and crimes against other people (such as assault) or against the government such as tax evasion or fraud.
One count of Driving Under the Influence (DUI) will not result in a criminal visa ineligibility, but could lead to a medical visa ineligibility for alcoholism linked with dangerous behavior.
How Might the Sentencing Exception Aid Someone with a Criminal Record Obtain a K-1 Visa?
If your foreign national fiancé(e) was convicted of only one crime and the maximum penalty possible for that crime is less than one year, chances are he or she might not be found inadmissible. This exception does not take into account the actual length of the sentence given issued to a person but rather the maximum penalty that could have been imposed. Note that the sentencing exception does not apply to drug crimes.
Take for example, if your fiancé were convicted of a misdemeanor petty theft they would ordinarily be found inadmissible. If, however, the maximum sentence a judge could give for misdemeanor shoplifting in that jurisdiction is less than one year, and your fiancé has not been convicted of any other crimes, your fiancé would not need a waiver of inadmissibility when proceeding with a visa application.
How Does a Waiver of Inadmissibility Work
The design of the waiver of inadmissibility is to request that the U.S. government overlook someone’s criminal record so that they can obtain a visa to enter the United States (or acquire some other form of immigration benefit).
Although the K-1 fiancé visa is recognized as an nonimmigrant visa, under which circumstances an applicant would generally petition a nonimmigrant waiver, the fiancé visa is treated a little differently. After all, your fiancé very likely has intentions of staying in the U.S. permanently after getting married by filing for an adjustment of status (U.S. green card).
This means then that your fiancé would request an immigrant waiver by filing a Form I-601, Application for Waiver of Grounds of Inadmissibility, along with supporting documents and filing fee.
Which Criminal Convictions Can Be Waived for Your Fiancé
Many types of crimes can be waived or lawfully forgiven if a K-1 visa applicant can make a persuasive case that he or she is deserving of a waiver with the following exceptions:
- A conviction for drug possession (with the exception of a single offense of possession of less than 30 grams of marijuana)
- Any drug trafficking conviction or
- A conviction for murder or a crime involving torture, or admitting or conspiring to commit murder.
If you are still unsure that your fiancé’s criminal conviction can be waived visit your local immigration attorney immediately.
Is It In My Fiancé’s Best Interest to Talk to An Immigration Lawyer
Consulting with an Immigration law representative will not only help your fiancé’s case. Make sure that the immigration attorney you hire to represent your fiancé is also familiar with criminal cases. Visit Gambacorta Law Office or call us at 1-847-786-2599 for an appointment. Our team of attorneys will gladly walk you through the entire process.