Getting a Green Card With a Misdemeanor Conviction

Whenever you are charged with a crime you should hire a criminal lawyer to best protect you. With a combination of skill, experienced, knowledge and diligence, the right criminal defense attorney can be the difference between a criminal and clean record. Fortunately, even if you were convicted of a crime, a misdemeanor offense does not automatically mean you are no longer eligible for a Green Card. Keep in mind, however, that even though your conviction was “only” for a misdemeanor and not for a more serious offense, such as an Aggravated Felon, your Green Card application can become a unnavigable maze that will require the counsel of an immigration attorney or Green Card lawyer to lead you through.

• New York Immigration Lawyers: From Visas to Green Cards and Naturalization
• Visa Overview: Understanding Visas
• Types of Visas for Foreign Nationals in the United States
• Securing a Green Card and Permanent Residence
• Becoming a United States Citizen through Naturalization
• Criminal History and Your Immigration Application
• Arrest and Convictions: Immigration Consequences Resource Page

To fully understand the effect a misdemeanor conviction will have on an individual’s ability to obtain a Green Card, contacting criminal lawyer and immigration attorney, such as those at Saland Law, is essential. The following information will provide a basic overview of how a misdemeanor criminal conviction can adversely affect both the process and viability of securing a Green Card

The exact definition of a misdemeanor crime will depend on where the crime took place. In most U.S. states (where most individuals are charged for criminal offenses), a misdemeanor is a crime that carries a jail sentence of one year or less.

A misdemeanor is a more severe criminal offense than a violation or infraction, which usually carries no jail time and has a fine as the only form of criminal punishment. But a misdemeanor is a less severe criminal offense than a felony, which often carries jail time of more than one year. Many states further subdivide misdemeanors into classes or degrees, with punishments that are subject to a Judge’s discretion.

Some common misdemeanor crimes in New York State include, but are not limited to:

• Petit Larceny (often associated with shoplifting)
• Seventh Degree Criminal Possession of a Controlled Substance (often associated with possession of cocaine, molly, heroin or other drugs for personal use)
• Third Degree Assault
• Fourth Degree Criminal Mischief
• Second Degree Aggravated Harassment

For U.S. immigration purposes, a misdemeanor is a crime that either:

• Can result in incarceration lasting more than a year, but is classified by the state as a misdemeanor and the actual sentence imposed on the individual is incarceration of one year or less, or

• Can be punished by incarceration for a maximum term of one year or less.

The effect of a misdemeanor conviction on your ability to get a Green Card is not straightforward and one of the many reason why it is critical to consult with and retain an immigration attorney. At bottom, what U.S. immigration authorities consider as “minor” will differ from what the average person believes is “minor.” That said, most people would agree that there is nothing “minor” about having a criminal record whether misdemeanor or felony.

• New York State Criminal Defense
• Federal Criminal Defense

Fortunately, in many cases, a misdemeanor conviction will not deem an individual as “inadmissible,” or ineligible for a Green Card with the following caveats:

• The misdemeanor conviction results in a jail sentence of six months or less,
• This is the individual’s first criminal conviction,
• The conviction does not involve drugs, and
• The conviction is not for a crime the US immigration authorizes considered a Crime Involving Moral Turpitude.

Even if a misdemeanor conviction would normally deem an individual inadmissible, there may still be light at the end of the proverbial tunnel. Discuss with your immigration lawyer whether you are eligible for a Green Card if an exception or waiver applies despite your misdemeanor conviction.

The first common exception is called the petty offense exception, which can apply to offenses that are considered Crimes Involving Moral Turpitude (CIMT). This exception applies when two conditions are met. First, the maximum possible jail sentence the individual could have faced was one year or less. Second, the individual must have been sentenced to six months or less in jail. Under the petty offense exception, the actual amount of time served in jail does not matter.

• Removal Proceedings and Deportation
• Criminal Convictions and Records: Eligibility Issues

The second common exception applies to youthful offenders. This exception will apply if an individual committed the crime while under the age of 18, the individual is no longer in jail, it’s been at least five years since the individual was released from jail and the conviction took place in regular court. The regular court requirement means the individual must have been tried as an adult, not a juvenile.

There are two common scenarios where U.S. immigration officials will sometimes look past a criminal conviction that would otherwise deem an individual as inadmissible. In these situations, an individual applies for a waiver that, if granted, allows an him or her to apply for a Green Card.

The first scenario involves more than 15 years having passed since the crime was committed and the individual proving they are not a threat to the safety and security of the United States.

The second scenario applies if the individual is the parent, child or spouse of a permanent resident or US citizen and not obtaining a Green Card would result in an extreme hardship on the permanent resident or US citizen.

A conviction is bad whether due to a misdemeanor arrest or felony indictment. It likely is not lost on you or your family that the ramifications are significant. While you may have made a mistake that led to your conviction, it is not too late to potential alter your trajectory and have a life in the United States. In the event you have a pending criminal case, retain a skilled and experienced criminal defense attorney along with your immigration lawyer. Simply, do not let past allegations destroy your future. Take ahold of your life and secure your Green Card before the opportunity passes you by.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.