Not surprisingly, the U.S. government takes a careful look at the criminal record, if any, of all applicants for U.S. visas or lawful permanent residence (a green card). Applicants with a record of crimes other than the most minor sort, such as low-level misdemeanors, are likely to be barred from the U.S. as "inadmissible." But what if the U.S. family member, the one petitioning for an immigrant, has a criminal record? Does U.S. immigration law also protect the foreign-born immigrant from being sponsored by someone who could be dangerous?
Depending on the type of crime, the U.S. sponsor or "petitioner" might, in fact, be barred from helping a family member, particularly a spouse or child, immigrate. Domestic violence or crimes against young people are the main concern. Let's take a closer look.
What Parts of a U.S. Petitioner's Background U.S. Immigration Authorities Review
When a U.S. citizen or lawful permanent resident (LPR) starts the immigration sponsorship process for someone, U.S. immigration authorities do not scrutinize every aspect of a that person's record in connection with the family members' eligibility to immigrate.
However, there are three possible issues that can arise when the U.S. petitioner has crimes on record. Two are based directly on the law, the other is based on practical, financial realities associated with criminal activity, namely:
- whether the U.S. sponsor has committed offenses against children
- whether the U.S. sponsor has committed domestic violence, and
- whether the U.S. sponsor is, because of being involved in criminal activity, under-employed or low-income, therefore possibly unable to promise to support the immigrant financially and keep the immigrant from becoming a "public charge" (reliant on government financial assistance or welfare).
Offenses Against Children Bar U.S. Petitioners From Sponsoring Immigrants
In 2006, Congress passed what's called the Adam-Walsh Child Protection and Safety Act (the “Adam Walsh Act”). Title IV of this law bars U.S. citizens and lawful permanent residents who have criminal records of offenses against minors from petitioning for family members to receive U.S. residence (green cards) or K-1 fiancé visas. (See I.N.A. §§ 204(a)(1)(A)(i) and 204(a)(1)(B)(i).)
Most of the crimes that create this bar are sex offenses, such as soliciting underage prostitutes, video voyeurism, and possession, production, or distribution of child pornography. However, kidnapping and false imprisonment of a child who is not one's own are also on the list.
U.S. Citizenship and Immigration Services (USCIS) runs criminal background checks on U.S. petitioners to find out whether their names or fingerprints show up on any FBI database, sex offender registry, or records held by related agencies.
For the protection of the immigrants, the agency will likely deny an immigrant petition by someone with a child sex crime on record, unless it can be shown that the petitioner poses no risk of harm to the immigrants, “beyond a reasonable doubt.”
Domestic Violence Record Can Block U.S. Citizen's Petition for a Fiancé or Spouse to Come to the U.S.
The U.S. Congress also passed something called the International Marriage Broker Regulation (IMBRA; I.N.A. § 214(d)(1), 8 U.S.C. § 1184(d)(1)).
It requires a U.S. citizen who petitions for someone to receive either a fiancé(e) (K-1) nonimmigrant visa or a K-3 fiancé visa (which is rarely used, but allows married couples to split the application process into two parts, one overseas and one in the U.S.) to show a record that's clean of domestic violence and of related crimes involving violence, abusive sexual contact, sexual exploitation, or false imprisonment.
Notice that a regular marriage-based application, where the couple gets married before filing immigration paperwork, will not require this showing.
Financial Considerations in Sponsoring an Immigrant to the U.S.
More than ever, immigrants to the United States are being asked to prove that they will not become "public charges" or rely on need-based government assistance. Spousal support is crucial in that calculation. If the U.S. petitioner's criminal record results in a spotty employment record or low income, the public charge hurdle becomes tougher to clear.
It's not a direct legal bar, but it could create a significant problem nonetheless. The U.S. government looks at the "totality of the circumstances" in deciding whether an applicant is likely to become a public charge in the future. If, for example, it were to notice that the petitioner in a marriage-based visa case had been in and out of prison, the financial future could look bleak for the incoming spouse.
Applicants facing this issue would need to gather other evidence to show that their likely income (from non-criminal activity), assets, and future prospects outweigh this factor.
Do I Need to Hire a Lawyer?
An attorney can be a great help in analyzing the possibilities for family immigration and helping prepare the forms, gather the relevant documents, and keep track of the case's progress. You might be interested in reading, How Much Does a Lawyer Cost for a Family or Fiancé Visa Application?.