A person with a criminal record is still eligible to apply for the EB-5 program. Once an applicant’s I-526 Petition is approved, criminal history becomes an important factor when applying for permanent residence.
A Crime of Moral Turpitude
When evaluating the criminal record, two issues must be addressed. The first issue is whether the crime committed is a crime involving “moral turpitude.” A crime of moral turpitude makes a person ineligible to enter the U.S. “Moral turpitude” has been defined by the Courts as “a crime that
- is vile, base, or depraved, and
- violates societal moral standards.”
It must be done willfully or with evil intent.
Examples of crimes that are considered crimes involving moral turpitude include fraud, assault, kidnapping, murder, crimes involving illegal drugs, robbery, and abuse of a spouse or relative.
Whether a conviction is, in fact, a crime involving moral turpitude is complex, and in some instances contradictory among the Courts. It involves a complex analysis that an immigration attorney should do.
The second issue is whether the crime is an “aggravated felony.” An aggravated felony is a crime which carries a prison sentence of one year or more, although this is not necessarily the case. A misdemeanor, or non-felony, crime, where the maximum jail sentence is under one year, can, in some cases, be considered an aggravated felony for immigration purposes.
The U.S. statutes have an extensive list of crimes that qualify as aggravated felonies. The elements of the conviction itself will also be examined when determining if the crime falls into this category. Analysis of the conviction will compare the state or foreign law that the conviction is based on with U.S. federal laws.
Additionally, one must look to the courts and their interpretations in order to determine what qualifies as an aggravated felony. Unfortunately, the courts themselves are oftentimes divided on certain convictions.
If the conviction is determined to be an aggravated felony, a waiver can be submitted for consideration in some circumstances. A waiver is essentially a formal request to the U.S. Immigration Services that they pardon the crime and allow the immigrant to become a permanent resident. To apply for a waiver, you must show hardship to a U.S. citizen relative living in the U.S.
A person can ask the criminal court to expunge, or erase, their criminal conviction. While this is encouraged, and will help in obtaining certain employment and professional licenses, it does NOT eliminate the conviction for immigration purposes.
Some convictions need no analysis, as they are not crimes of moral turpitude, nor aggravated felonies. Some examples are simple traffic and parking convictions, driving under the influence of alcohol convictions, or other minor misdemeanor convictions. However, if there are several convictions in a short period of time, then these convictions would need to be evaluated for their effect on the immigration process.
If you are considering EB-5, but are unsure of your eligibility, contact Jatoi & de Kirby, A.P.C. We can help you evaluate your individual case to make sure you get the best results possible.
Additionally, please read the article, Will I Run Into Problems During Naturalization? for more information about crimes and EB-5.