People often ask me how difficult it is to obtain a green card. In typical lawyer fashion, I generally answer, “It depends.” For someone with a significant criminal record or a string of deportations in his or her record, it will be near impossible for that person to obtain a green card. For someone who entered the United States legally, has never had any issues with law enforcement and has always maintained a perfect immigration record, it would not be as challenging. Many of my clients are somewhere in the middle of those extremes. In this article, I will explain some of the legal issues that would bar someone from being able to become a lawful, permanent resident of the United States.
The most obvious bar to immigrating to the United States is a criminal record. Not all crimes have immigration consequences, but any encounter with law enforcement will have to be documented before a green card would be granted. Any drug-related offense, other than one offense for simple possession of 30 grams or less of marijuana, is likely to result in a permanent bar to a green card. Any offense deemed a “crime involving moral turpitude” may also result in a bar with the exception of a petty offense for a relatively minor misdemeanor. Other offenses that may result in a bar to obtaining a green card include prostitution, drug and people trafficking.
Non-drug related offenses that do not involve moral turpitude, such as disorderly conduct and strict liability crimes, or crimes of negligence, generally will not have immigration consequences. Under current law, driving under the influence or while intoxicated generally does not factor into a green card decision. Also, attempts and conspiracy to commit crimes count as though they were the crimes themselves and potentially carry the same consequences. Finally, a plea of guilty or no contest and punishment are equal to a finding of guilt for immigration consequences, even if the criminal case is ultimately dismissed.
In addition to criminal records, immigration history can create challenges for those seeking permanent residence in the United States. For example, someone who has been deported from the United States, either at inspection, by the immigration authorities inside the United States, or by an immigration judge will create a bar to returning to the United States, or becoming a permanent resident. The bar will be either five, 10 or 20 years depending on the section of law under which the person was ordered deported from the United States.
Overstaying a period of admission also creates a bar to immigrating to the United States. The bar will be either three or 10 years depending on the length of overstay. For someone who has been deported from the United States for unlawful overstay of more than one year and who leaves the United States and re-enters illegally, will received a lifetime bar to immigrating to the United States. The only possible exception is a potential waiver for someone who has been outside the United States for at least 10 years without returning to the country illegally.
Those who have or whom the government has reason to believe have engaged in terrorist activity are not eligible for immigration benefits. The bar includes any spouse or children of that person. Terrorist activity is defined very broadly and no intent to participate in a terrorist organization or activity is required.
One of the cardinal sins in immigration law is fraud. Everything centers on an applicant’s credibility. Any fraud or misrepresentation for any legal benefit creates a bar to a green card. For someone who makes a false claim to U.S. citizenship for any legal benefit, a lifetime bar is received without waiver. Certain medical issues can also bar a person from becoming a permanent resident, such as communicable disease, a lack of required vaccinations, drug abuse or addiction, or mental health issues that result in the person being found to be dangerous to others.
For some of these issues, a waiver is available, but not guaranteed to be approved. A waiver is a discretionary application processed by the U.S. Citizenship and Immigration Services. An applicant must establish that failure to grant the applicant permanent residence will result in extreme hardship to qualifying family members. Garry L. Davis