What Happens if My Immigrant Fiancé Has a Criminal History?

Your fiancé’s criminal records affect on their ability to immigrate to the United States depends on several different factors.

Last updated on May 16th, 2019

If your alien fiancé has a prior criminal record, it can affect their ability to immigrate to the United States. The United States has issued specific criteria that can exclude your fiancé from entry into the country, but it depends on what type of crime has been committed.

The Impact of the Criminal Record on Immigration

Your fiancé’s criminal records affect on their ability to immigrate to the United States depends on several different factors, such as what type of crime was committed, the age of your fiancé when they committed the crime, what type of punishment they were sentenced to, and the amount of time that has passed since the crime was committed.

Typically, the most common crimes that will cause an alien to be deemed inadmissible are ones of moral turpitude.

These crimes, although they have not been explicitly defined in immigration law, are typically ones that are contrary to community standards for justice and good morals. In most cases, these tend to be considered more serious crimes, but can cause you to be excluded from immigrating to the United States.

Further, USCIS will consider how old your fiancé was when they committed the crime. If they were under 18 when they committed the crime, their history will be looked upon more favorably.

Also, if your fiancé served a sentence of less than 6 months, their criminal record may have less of a detrimental effect on their immigration status. It is also beneficial to the status of their immigration application if they committed the crime more than five years prior to the submission of the application.

Again, it depends on the type of crime they have committed. Usually, crimes involving drugs or other illegal substances, even marijuana, are reviewed with heavy scrutiny. This is especially true in the case of drug trafficking offenses.

Crimes that Automatically Bar Your Fiancé from Admission

There are some criminal offenses that will automatically exclude your fiancé from entry into the United States and make them inadmissible. Such crimes can include:

  • Committing murder
  • The commission of an act that involves torture of an individual
  • Attempting or conspiring to torture or murder an individual
  • Drug trafficking
  • Drug distribution offenses
  • Knowingly aiding, conspiring, or colluding with other drug traffickers
  • Possession of most controlled substances, unless it is a single offense for the possession of 30 grams or less of marijuana
  • Aggravated felonies, which includes such crimes as murder, rape, offenses include firearms or other weapons, child pornography, human trafficking, and others.
  • Convictions of two or more crimes where your fiancé’s prison sentence was for at least five years.
  • Money laundering
  • A history of espionage or terrorism
  • Prostitution
  • Participation in Nazi persecution
  • Participation in genocide or torture

What to do if Your Fiancé Has a Criminal History

If your fiancé has a criminal history, you should make sure to bring their court records with them during the consulate interview.

The consulate will request to see the records, but it will also help to speed up the application process as well.

In the case that your fiancé’s visa is denied, it is important to check if he or she is eligible for a waiver, also called an I-601 Application for Waiver of Grounds of Admissibility.

Waivers are available for aliens who have been deemed inadmissible to the United States, it may be possible that you can overcome this distinction by filing a waiver.

Your fiancé cannot file for a waiver until their visa has been denied.

The waiver is available for the following crimes that would categorize an immigrant as inadmissible:

  • Crimes of moral turpitude
  • Multiple criminal convictions
  • Prostitution
  • Violations of U.S. immigration laws

Waivers are not available for the following crimes:

  • Drug abuse
  • Drug addictions
  • Drug trafficking
  • History of espionage or terrorism
  • Participation in Nazi persecution
  • Participation in genocide or torture

A waiver will require your fiancé to explain why they should be granted the visa in spite of their criminal history.

Also, it requires that a qualifying relative, the United States citizen who has filed the petition for the alien fiancé to be allowed to immigrate into the United States, would suffer an extreme hardship if the immigrant fiancé was denied entry and why they cannot live in the foreign country, as opposed to the United States.

Extreme hardship is a subjective standard and has not been explicitly defined in the current immigration laws. Evidence that can be used to indicate the presence of extreme hardship can include:

  • U.S. citizen children who need to continue their educational careers in the United States
  • Children who are U.S. citizens who cannot leave the country due to the previous spouse not giving consent
  • If the U.S. citizen cannot speak the language of the foreign country
  • If the U.S. citizen cannot find employment opportunities in a foreign country.
  • The excessive cost of having to move to a foreign country
  • The financial loss that the U.S. citizen would incur as a result of the separation
  • The emotional suffering that the U.S. citizen and foreign immigration would suffer due to international separation.

The presence of extreme hardship will be decided based on the strength of the evidence you can include in your waiver and should be made as detailed as possible if your alien fiancé is denied admission in the United States.

For this reason, we highly recommend that you consult and hire an attorney in situations involving an immigration waiver. An attorney will best know how to create strong legal arguments and put together evidence to strengthen your waiver application.

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