USCIS intends to deny your case because of criminal history?
A criminal Notice of Intent to Deny should not be analyzed merely by asking whether an applicant has ever been arrested or convicted. Immigration law contains several distinct criminal grounds of inadmissibility, each with its own elements, exceptions, and potential waiver rules.
Send Us Your Criminal NOIDStart with the exact statutory ground USCIS proposes to apply.
“Criminal history” is not one immigration ground.
INA §212(a)(2) contains multiple criminal and related grounds of inadmissibility. A person may have a criminal record without being inadmissible under the particular provision USCIS cites, while other situations can create inadmissibility even without a traditional criminal conviction.
The NOID should therefore be analyzed by identifying the exact criminal statute, the precise disposition, the documents comprising the criminal record, and the specific immigration ground USCIS proposes to apply.
Only after the ground has been correctly analyzed should the response turn to statutory exceptions, waiver eligibility, rehabilitation, or discretion.
Which criminal inadmissibility provision does USCIS rely on?
Different provisions answer different questions and cannot be treated as interchangeable.
Crime Involving Moral Turpitude
USCIS may allege that a conviction or legally sufficient admission involves an offense classified as a crime involving moral turpitude. The analysis depends on the applicable criminal statute and immigration law rather than merely the offense's common name.
Controlled Substance Violation
A conviction for, or qualifying admission involving, a law relating to a federally controlled substance can create a separate inadmissibility issue with particularly limited immigrant-waiver options.
Multiple Criminal Convictions
USCIS may apply the separate multiple-conviction ground when the statutory requirements concerning multiple convictions and aggregate sentences to confinement are met, regardless of whether each individual offense is a crime involving moral turpitude.
Controlled Substance Trafficking
The trafficking provision is particularly serious because it does not depend solely on whether a conventional criminal conviction appears in the record. The exact factual basis USCIS relies upon should be identified and challenged where unsupported.
Prostitution or Commercialized Vice
Certain prostitution and commercialized-vice conduct is addressed by its own inadmissibility provision and should be analyzed separately from crimes involving moral turpitude.
Other §212(a)(2) Provisions
INA §212(a)(2) contains additional criminal and related provisions. The response should use the exact subsection identified in the NOID rather than generalize from other criminal grounds.
A state court's terminology does not automatically control immigration law.
The disposition must be analyzed under the immigration definition.
Dismissal, deferred adjudication, withheld adjudication, probation, expungement, diversion, vacatur, and other state procedures can have different immigration consequences depending on what occurred and why.
The response should obtain the actual court documents and determine whether the disposition satisfies the federal immigration definition of a conviction rather than relying on a client's recollection or the label appearing on a background check.
Some criminal grounds may also involve legally sufficient admissions or conduct-based provisions, so proving that there was no conviction does not automatically resolve every possible INA §212(a)(2) issue.
Different records answer different legal questions.
Charging & Disposition Documents
Certified complaints, indictments, informations, plea records, judgments, sentencing documents, and final dispositions may be critical to determining what offense and disposition actually occurred.
The Criminal Statute
The exact version of the criminal statute in effect when the offense occurred can be important. Similar offense names may cover materially different conduct in different jurisdictions or at different times.
Police & Conduct Records
Police reports and other factual records may be relevant for some immigration issues or discretionary review, but they should not automatically be substituted for the legal analysis of the offense of conviction.
Six questions to answer before conceding criminal inadmissibility.
Some criminal grounds contain important exceptions.
The exception analysis should occur before the waiver analysis.
For example, the crime-involving-moral-turpitude provision contains statutory exceptions that may apply in certain cases based on the applicant's age, the timing of the offense, the maximum possible penalty, and the sentence actually imposed.
Whether an exception applies depends on the precise criminal statute, the disposition, sentencing information, and the applicant's circumstances.
If an exception means the applicant is not inadmissible in the first place, there may be no need to seek a waiver of that ground.
Not every criminal inadmissibility ground can be waived.
Waiver eligibility depends on the particular ground and applicant.
INA §212(h) provides waiver authority for certain criminal grounds when the statutory requirements are satisfied. The available route may depend on the age of the conduct, rehabilitation, family hardship, VAWA-related provisions, or other statutory requirements.
Controlled-substance inadmissibility is substantially more restrictive. The §212(h) controlled-substance waiver is limited to the statutory provision involving a single offense of simple possession of 30 grams or less of marijuana, subject to the remaining requirements.
Other statutory restrictions can also affect §212(h) eligibility. A waiver should therefore never be assumed simply because the applicant has a U.S. citizen or lawful permanent resident relative.
Criminal conduct can also affect discretion.
For applications involving discretionary relief, USCIS may consider relevant criminal conduct separately from whether a particular inadmissibility ground applies.
Six principles for responding to a criminal NOID.
Get the Certified Court Record
Do not rely solely on a background check, memory, or a brief docket entry when the disposition is legally significant.
Identify the Exact INA Ground
A controlled-substance case, CIMT allegation, trafficking allegation, and multiple-conviction case require different analyses.
Analyze the Statute, Not the Label
The common name of an offense does not necessarily establish its immigration classification.
Check Exceptions Before Waivers
First determine whether the applicant is actually inadmissible before conceding the ground and asking USCIS to waive it.
Separate Inadmissibility From Discretion
A response may need one argument explaining why no statutory ground applies and a separate argument addressing the conduct as a matter of discretion.
Watch for Misrepresentation
If USCIS believes the criminal history was omitted from a visa, immigration form, or interview, analyze that allegation separately under the fraud and willful-misrepresentation provisions.
Need detailed analysis of a criminal ground of inadmissibility?
ImmigrationRFE.com focuses on responding to the USCIS notice. For broader ground-by-ground coverage of criminal inadmissibility, waivers, INA §212(h), controlled substances, and related issues, visit our companion resource INA212.com.
Criminal NOID FAQs
Common questions when USCIS proposes to deny an immigration benefit based on criminal history.