How to File I-130 if the petitioner has a criminal history?

How to File I-130 if the petitioner has a criminal history?

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Form I-130, also known as Petition for Alien Relative, establishes that there is a valid family relationship between a US Citizen or a Green Card holder and the foreign family member.

It is the first step for obtaining a Green Card through the family-based process. However, what happens if the petitioner has a criminal history? Does it matter for immigration?

In the United States, a criminal conviction can not only make it harder to find employment and housing, but it can also affect immigration. 

The USCIS (United States Citizenship and Immigration Services) takes a very close look at the types of felonies a US citizen has if they want immigration benefits. If they have committed a serious offense, they do not want that person to bring someone else to the country that could become a victim.

What crimes may prevent you from filing I-130?

If you have been convicted of crimes such as assault, theft, or drug trafficking, you should not have any issues with filing a petition for a family member. This, of course, is as long as you have served your penalty and are not wanted by authorities.

However, the following crimes may prevent you from petitioning a family member:

• An offense involving kidnapping (unless committed by a parent or guardian);
• An offense involving false imprisonment (unless committed by a parent or guardian);
• Solicitation to engage in sexual conduct;
• Use of a minor in a sexual performance;
• Solicitation to practice prostitution;
• Video voyeurism;
• Child pornography: Possession, production, or distribution;
• Criminal sexual conduct involving a minor;
• sing the Internet to facilitate or attempt criminal sexual conduct involving a minor;
• Any conduct that, by its nature, is a sex offense against a minor.

USCIS will run a standard background check on both the petitioner and the beneficiary. The background check results will determine the eligibility for a US visa for the spouse or family member.

In general, USCIS is more concerned about the petitioner’s criminal history if there was an offense against a minor. If you have a previous conviction related to minors, such as child pornography, you may want to hire an immigration lawyer in San Diego, California.

Can there be an exception?

Nonetheless, the law created an exception. It is a discretionary decision that the Department of Homeland Security (DHS) can take based on the belief that the US person filing the visa petition does not present risk to the beneficiary.

In this case, the petitioner has to prove without a reasonable doubt that he or she does not pose a threat to the beneficiary. To convince DHS, the petitioner will also need to supply documentary evidence, such as:

• Police reports and court records relating to the offense;
• News accounts and trial transcripts discussing the nature and circumstances surrounding any and all the petitioner’s criminal, violent, or abusive behavior incidents, arrests, and convictions;
• Evidence that the petitioner has completed a course of therapy or counseling;
• Evidence that the petitioner has completed a rehabilitation program;
• Results of evaluations by licensed psychiatrists, clinical psychologists, clinical social workers, or other professionals describing the petitioner’s rehabilitation or behavior modification;
• Evidence of community service performed by the petitioner;
• Certification of the petitioner’s service in the US Armed Forces, Coast Guard, or public health services.

It is advised to seek guidance from an immigration attorney since the petitioner will want to get the filing done correctly on the first try.

If the DHS is convinced that the petitioner poses no risk to the beneficiary, the I-130 application can move forward.

If you have questions about immigration in San Diego, California, contact Kannan Law today, we are ready to give your answers and find a solution to your case.