Getting a Visa with a criminal record
If you'd like to visit the U.S., and you have a criminal record, you may need to take additional steps to gain entry.
In order to visit the U.S., foreign nationals must in many cases (where entry on the Visa Waiver Program isn't available from their country) obtain visitor visas (B visas) from the U.S. consulate in their home country.
Although B visas are normally easy to obtain, if a foreign national has a criminal record the U.S. consulate will likely deny the visa. The reason for this is that U.S. immigration law states that foreign nationals with criminal convictions are "inadmissible" to the U.S. – meaning that they are not allowed to enter the U.S. due to their criminal record.
However, U.S. immigration law also provides for an inadmissibility waiver. This waiver, if granted by the U.S. government, allows a foreign national to enter the U.S. notwithstanding a criminal record – effectively forgiving the criminal inadmissibility ground and treating the foreign national as if the individual did not possess a criminal record.
Who does it apply to?
Criminal inadmissibility grounds apply to all foreign nationals seeking to enter the U.S. in any nonimmigrant status. Thus, if you are planning on coming to the U.S. as a student (with an F-1 visa) or to work temporarily (with an H-1B visa, O-1 visa, or other work visa) and you have a criminal record, you will likely be required to obtain a waiver before you can successfully get a visa to enter the United States.
Who Knows I have a criminal record? You will be subject to the criminal ground of inadmissibility if you have a criminal conviction in either the U.S. or your home country. The U.S. consulate will be able to access your police record in your home country, so do not think that just because the crime occurred outside of the U.S. that the U.S. consulate will not find out about it. Lying about your record, or otherwise trying to conceal the information will only cause you more problems.
How Do I Get a Waiver? In order to obtain a waiver, you must apply at the U.S. consulate in your home country. This type of inadmissibility waiver (for foreign nationals trying to come to the U.S. with a nonimmigrant/temporary visa) is called a 212(d)(3) waiver because it's from Section 212(d)(3) of the U.S. Immigration and Nationality Act (I.N.A.). 212(d)(3) waivers are granted solely in the discretion of the U.S. government – no foreign national has a right to receive a 212(d)(3) waiver. There are three criteria for the government to evaluate when processing waiver requests:
1. The risk of harm to society if the foreign national is admitted.
2. The seriousness of the foreign national’s prior immigration law or criminal law violations, and
3. The foreign national’s reasons for wishing to enter the U.S.
The foreign national need not have an emergency reason (such as visiting a deathly ill U.S. relative) in order to obtain a 212(d)(3) waiver.
When do I file the waiver? If you know that you have a criminal record, you should bring the waiver application with you to the consulate when you go for your visa interview. In rare circumstances, you may not know that you are inadmissible due to a criminal conviction and you will find out about the inadmissibility at the visa interview. In these situations, the consular office should inform you of the inadmissibility, and you will be able to reschedule the interview for a later time. At your second interview, bring your waiver application to give to the officer.
How do I know if my waiver is approved? A consulate officer will review your application and will make an initial determination on your waiver. If the officer recommends that the U.S. government approve your waiver, the officer will send your application to the Admissibility Review Office (ARO) in Washington, DC. The ARO makes the final determination on your application. Once the ARO approves your application, it will return the application and a notice of approval to the U.S. consulate in your home country and the consulate will issue your visitor visa.
What happens if the consular officer denies my waiver application? If the ARO denies your waiver application, you can appeal the denial to the BIA. However, because it typically takes a long time for the BIA to make a decision on appeals, practically speaking it is faster to reapply for the waiver and hope that the ARO will approve your application the second time.
In order to visit the U.S., foreign nationals must in many cases (where entry on the Visa Waiver Program isn't available from their country) obtain visitor visas (B visas) from the U.S. consulate in their home country.
Although B visas are normally easy to obtain, if a foreign national has a criminal record the U.S. consulate will likely deny the visa. The reason for this is that U.S. immigration law states that foreign nationals with criminal convictions are "inadmissible" to the U.S. – meaning that they are not allowed to enter the U.S. due to their criminal record.
However, U.S. immigration law also provides for an inadmissibility waiver. This waiver, if granted by the U.S. government, allows a foreign national to enter the U.S. notwithstanding a criminal record – effectively forgiving the criminal inadmissibility ground and treating the foreign national as if the individual did not possess a criminal record.
Who does it apply to?
Criminal inadmissibility grounds apply to all foreign nationals seeking to enter the U.S. in any nonimmigrant status. Thus, if you are planning on coming to the U.S. as a student (with an F-1 visa) or to work temporarily (with an H-1B visa, O-1 visa, or other work visa) and you have a criminal record, you will likely be required to obtain a waiver before you can successfully get a visa to enter the United States.
Who Knows I have a criminal record? You will be subject to the criminal ground of inadmissibility if you have a criminal conviction in either the U.S. or your home country. The U.S. consulate will be able to access your police record in your home country, so do not think that just because the crime occurred outside of the U.S. that the U.S. consulate will not find out about it. Lying about your record, or otherwise trying to conceal the information will only cause you more problems.
How Do I Get a Waiver? In order to obtain a waiver, you must apply at the U.S. consulate in your home country. This type of inadmissibility waiver (for foreign nationals trying to come to the U.S. with a nonimmigrant/temporary visa) is called a 212(d)(3) waiver because it's from Section 212(d)(3) of the U.S. Immigration and Nationality Act (I.N.A.). 212(d)(3) waivers are granted solely in the discretion of the U.S. government – no foreign national has a right to receive a 212(d)(3) waiver. There are three criteria for the government to evaluate when processing waiver requests:
1. The risk of harm to society if the foreign national is admitted.
2. The seriousness of the foreign national’s prior immigration law or criminal law violations, and
3. The foreign national’s reasons for wishing to enter the U.S.
The foreign national need not have an emergency reason (such as visiting a deathly ill U.S. relative) in order to obtain a 212(d)(3) waiver.
When do I file the waiver? If you know that you have a criminal record, you should bring the waiver application with you to the consulate when you go for your visa interview. In rare circumstances, you may not know that you are inadmissible due to a criminal conviction and you will find out about the inadmissibility at the visa interview. In these situations, the consular office should inform you of the inadmissibility, and you will be able to reschedule the interview for a later time. At your second interview, bring your waiver application to give to the officer.
How do I know if my waiver is approved? A consulate officer will review your application and will make an initial determination on your waiver. If the officer recommends that the U.S. government approve your waiver, the officer will send your application to the Admissibility Review Office (ARO) in Washington, DC. The ARO makes the final determination on your application. Once the ARO approves your application, it will return the application and a notice of approval to the U.S. consulate in your home country and the consulate will issue your visitor visa.
What happens if the consular officer denies my waiver application? If the ARO denies your waiver application, you can appeal the denial to the BIA. However, because it typically takes a long time for the BIA to make a decision on appeals, practically speaking it is faster to reapply for the waiver and hope that the ARO will approve your application the second time.