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Criminal Convictions That Can Result in Deportation

Criminal activity by noncitizens may have immigration consequences. This is true whether they are undocumented aliens, temporary visitors or lawful permanent residents.

For individuals seeking entry or lawful status in the U.S., an admission or proof of criminal conduct could be sufficient for a finding of inadmissibility, whether as an immigrant or nonimmigrant. Individuals who are already admitted in the U.S. generally need a conviction to be considered deportable on criminal grounds.

Either way, they could find themselves in removal proceedings and ultimately deported to their home country and away from their family in the U.S., which is why deportation is sometimes seen as a worse punishment than imprisonment.

An alien may be deported for conviction of a crime involving moral turpitude committed within five years of admission and which carries a possible sentence of at least one year. Conviction of multiple crimes involving moral turpitude also makes one deportable regardless of when they were committed and whether they resulted from a single trial, as long as they did not arise out of a single scheme of misconduct.

Crimes involving moral turpitude are those that are “inherently base, vile or depraved, and contrary to the accepted rules of morality.” They include crimes against persons (e.g., assault and murder); crimes against property (e.g., robbery); sexual offenses; and crimes related to fraud (e.g., forgery and tax evasion). However, an alien found inadmissible or deportable on this ground may be eligible for relief such as waivers and cancellation of removal.

Aggravated felonies include some fifty general classes of crimes, including murder, rape, sexual abuse of a minor, illicit trafficking in controlled substances or in firearms, and crimes of violence for which the term of imprisonment is at least one year.

To be an aggravated felony, the crime of violence must involve the use or threat of physical force against the person or property of another, or by its nature involves substantial risk that physical force may be used in the course of committing the offense. Kidnapping, stalking, sexual assault and third degree assault, are examples of crimes that have been held by courts to be crimes of violence.

Offenses involving theft and burglary may constitute an aggravated felony if the term of imprisonment is at least one year. On the other hand, in a fraud and deceit offense the length of imprisonment is not what makes it an aggravated felony but rather the elements of the offense and the dollar amount of the victim’s loss, which must exceed $10,000.

Unlike crimes of moral turpitude, an aggravated felony conviction bars many forms of relief, including asylum, cancellation of removal, and voluntary departure. An alien convicted of an aggravated felony and is physically removed from the U.S. also becomes permanently inadmissible, although there is waiver for this particular ground.

In most deportability grounds, the DHS must prove “conviction”. Conviction for immigration purposes means a formal judgment of guilt of the alien entered by a court. If the adjudication of guilt has been withheld, the judge or jury must have found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and the judge has ordered to be imposed some form of punishment, penalty or restraint on the alien’s liberty.

Under certain circumstances, however, conviction is not even needed to subject the alien to removal. Mere admission of criminal activity is enough if certain factors are met. First, the conduct must constitute a crime under the law of the place where it was committed. Second, the noncitizen must admit to conduct that constitutes moral turpitude. Third, the alien must be provided with a definition of the crime before he can make a valid admission to a crime of moral turpitude or involving a controlled substance. Finally, the admission must be freely made and voluntary.

Documenting I-751 Petition To Remove Green Card Condition

An alien who receives a green card through marriage that is less than two years is granted a conditional residence status. The conditional residence status expires two years after it is granted. The petition to remove conditions on residence is made on Form I-751.

It is imperative that the petition is filed as failure to do so will result in the automatic termination of the conditional LPR status of the alien spouse. Once terminated, the case may be processed for issuance of a notice to appear in removal proceedings

If the petition is jointly-filed by the spouses, it must be filed within 90 days before the conditional residence status expires. The USCIS will process a late petition only if the delay is caused by extraordinary circumstances beyond the applicant’s control. If the marriage has been terminated through a final divorce or annulment, the alien spouse may file the petition with a request for waiver of joint filing. This is also made on Form I-751 and may be filed any time after the conditional residence status is granted but before removal from the U.S.

Evidence showing a bona fide marriage and continued marital union must be submitted to establish eligibility. The same is true for the alien spouse requesting a waiver of joint filing. He must submit evidence proving that the marriage was entered into in good faith and was not made for the purpose of obtaining residency.

Recently, the USCIS reviews I-751 petitions with more scrutiny. Evidence which the USCIS used to consider adequate is no longer sufficient to meet the standard of proof. More Requests for Evidence (RFEs) have been issued requiring more documents to prove good faith marriage and continued marital union.

Evidence include proof of common residence and shared responsibility, such as lease agreement naming both spouses as tenants, deeds and mortgages in both names; combined financial resources and joint responsibility for liabilities, such as joint checking and savings account statements, insurance policies showing the other spouse as beneficiary, joint federal and state tax returns and joint utility bills.

Note that proof of the existence of a joint account is no longer sufficient as USCIS requires account statements showing deposits or withdrawals for the period of marriage. Also, joint tax forms are no longer adequate as the USCIS requires proof of filing with the Internal Revenue Service (IRS).

Affidavits of persons who have personal knowledge of the marital relationship may also be submitted. Documentation of family vacations and photographs may also be included. Although these are not concrete evidence of bona fide marriage, the USCIS considers these helpful in adjudicating I-751 petitions.

If the director of the regional service finds the evidence sufficient, he may waive the interview and approve the petition. If not, the petition will be forwarded to a district director having jurisdiction and will assign an immigration officer who will conduct the interview.

Where the evidence is insufficient, it will deny the I-751 petition and the conditional residence status is terminated as of the date of the decision. There is no appeal from the decision. Proceedings for removal will be initiated and the alien may seek review of the decision in removal proceedings.

Sham Marriages and the Adjustment Interview

Entering into a sham marriage only for the purpose of obtaining immigration benefits is a serious matter that could have many consequences. It could lead to the deportation of the alien spouse and a bar on the approval of future immigrant visa petitions. Marriage fraud also gives rise to potential criminal violations for both spouses, the penalties for which include imprisonment and fine.

But what exactly is a sham marriage? If a man and a woman fall in love and marry after a whirlwind courtship of two weeks, and the man knew that the woman needed lawful immigration status to remain in the U.S. and promised to help her obtain a green card, is their marriage a sham?

A “sham marriage” has been described as one entered into for the primary purpose of evading immigration laws where the husband and wife have no intent of establishing a life together. Although they may have had a real marriage ceremony, if they did not intend a real marital relationship and establish a life together as husband and wife, their marriage is a sham.

In other words, if a marriage was entered into solely for the purpose of acquiring immigration benefits or evading immigration laws, it is not a valid marriage for immigration purposes.

However, if the parties had the intent of obtaining something other than love and companionship, as long as they intended to live as husband and wife at the start, the marriage is not a sham. In the example above, the marriage would not be a sham even though the parties also intended the marriage to help the wife become a lawful permanent resident aside from sharing a life together as husband and wife.

Suppose that the man in the example was already elderly and sick and needed someone to care for him, while the woman was unemployed with no place to live. They married and lived in the same house but without sleeping in the same bedroom or consummating their marriage. However, they promised to live together as husband and wife. A court found that under these circumstances, the marriage was not a sham and that cohabitation and consummation are not essential.

If, for example, the man and woman did cohabit for several months but their relationship soured quickly and the woman moved out of the house after only one year. They have no children and no properties. In this case, their marriage still would likely not be considered a sham. The law does not require the marriage to be an “ideal” or love-filled marriage.

The intent to live as husband and wife is a subjective matter that is proven through action or objective evidence. Documentary evidence showing that the couple held themselves out to the world as husband and wife should be brought to the interview.

These include joint tax returns, lease contract showing both their names, wedding photos and photos with family members, joint bank statements and credit card statements, birth certificates of children born to the marriage, telephone bills showing communication, medical records indicating the spouse as a person to contact, and affidavits of third parties with knowledge of the bona fides of the marriage.

Aside from evidence to be presented to the adjudication officer, the husband and wife should also be prepared for the personal interview. They should brace themselves for a detailed questioning about their personal lives. The officer may ask questions that seem too intrusive but are still within the bounds of law, unless they relate to sexual habits or personal eccentricities.

Inconsistencies in answers should be avoided because these will feed the suspicion of the officer. Immigration officers have great experience in detecting marriage fraud and they are skilled in uncovering lies based on conflicting information in the forms, documentary evidence and testimony. If fraud is suspected, the couple may be interviewed separately.

EB-2 Visa without a Master’s Degree

Professionals can qualify under the employment-based second preference (EB-2) category if they have a master’s degree or higher and if the position requires an advanced degree. This category is appropriate for workers in highly skilled occupations, such as physical therapists, doctors, lawyers, engineers and pharmacists.

An EB-2 classification is desirable primarily because there are no visa backlogs under this category, except for nationals of India and China. In contrast, under the third preference (EB-3) category under which most professionals and skilled workers fall, there are significant waiting times ranging from at least six years to over ten years.

The requirement to obtain labor certification from the Department of Labor (DOL) may also be waived if the EB-2 worker can show that the waiver is in the national interest of the United States. The exemption from labor certification through the national interest waiver (NIW) can further speed up the green card process by about a year.

Even without an advanced degree, however, a professional can qualify under EB-2 if the position offered requires a master’s degree or higher but the employer will accept a bachelor’s degree plus five years of progressively responsible experience, and if the professional possesses the requisite education and experience.

The employer, however, may not simply require a master’s degree or bachelor’s degree with 5 years experience just to make a position qualify under EB-2. For instance, it cannot require a master’s degree in business administration for an accountant position unless the higher educational requirement is related and necessary to the position.

The job requirements should not be greater than those assigned by the DOL in its Standard Occupational Classification system. Otherwise, the employer must explain that the higher requirements are justified by a “business necessity”.

Progressive experience is not defined in the statute or regulations but it entails an increase in the employee’s level of responsibility over time. Good indications of progressive experience include the addition of more complex job duties, payment of higher wages and promotion to different job titles.

The five years of experience generally means full-time work experience. There is no definite standard for full-time employment under the EB-2 category but it is believed that a 35-hour workweek meets the minimum standard for full-time employment.

The experience must also have been gained after graduation from the bachelor’s program. Any experience before the bachelor’s degree will not be counted towards the required five years.

Moreover, the experience and the educational degree must have come before the filing of the labor certification application. If a NIW is sought by the beneficiary, he must fulfill the requirements by the time that the I-140 petition is filed.

For positions that do require an advanced degree, the EB-2 category is an attractive alternative for professionals who have the necessary skills for the job but perhaps chose to forego graduate education to instead gain work experience.

Furthermore, given the rather nebulous progressive experience requirement, it is very important that the professional adequately document his experience and qualifications to help ensure that he meets the standard.

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