I have a criminal record. Can I petition for my fiance to come to the US?

I have a criminal record. Can I petition for my fiance to come to the US?

If you need help with your immigration status in San Diego, California, call us today at (619) 746-8879

Having a criminal record does not mean automatically that you cannot petition, as a US citizen, for your fiance(e) to come to the United States and eventually get married, which is done through the I-129F for a K1 Visa.

Petitioners that have a criminal history are deemed risky partners to immigrant K1 fiance(e)s and the United States government tries to make sure that the immigrant applicants will not be abused by the US citizen sponsor.

When the petitioner files for his/her fiance(e) s/he needs to fill out the I-129F where s/he declares if there’s a civil or criminal arrest or conviction in court for certain crimes. This information is disclosed to the USCIS (United States Citizenship and Immigration Services).

Criminal history involves violent crimes, assaults, domestic violence, sexual abuse, or substance abuse and the petitioner must disclose the information even if the crime was expunged. The USCIS will also request evidence of rehabilitation and conviction.

Do I need to reveal all my criminal background?

We recommend that yes, you reveal all your criminal background when filing to petition your fiance(e). If you don’t disclose the entire information, whether it was intentionally or not, the USCIS may find out in other ways and you could affect the petition.

As we said, even if the record was sealed or expunged, it may still exist because not all government agencies honor requests of changes. You can do a FOIA request for any agency record which will also help your immigration lawyer build a strong case in your favor.

Additionally, you may be called in for an interview and further background check and a biometric interview is possible. Then, all of the information you provided will be checked by the USCIS with several databases and finally, your fiance(e) will be interviewed for the K1 visa where the authorities will also share the criminal history with him/her for their safety and for him or her to be aware of your background before accepting the visa to marry you.

Is there a risk of a K1 visa denial if I have a criminal record?

Having a criminal record is not the sole reason for denial of a K1 visa, there are also other details that authorities will take into consideration for making their decision, whatever it is. In addition, the USCIS will also evaluate if you will be a dependable spouse or not, which if you are constantly being involved in violent behavior or fraud, the answer is no. If you are financially or socially responsible is another aspect of your life that they will consider, meaning if you are at risk of further violence, convictions, or jail time.

However, there are crimes that will prohibit you from petitioning someone on a family-based visa like the K1 which are offenses against minors covered under the Adam Walsh Act of 2006 and also known as “disqualifying convictions”.

Why do you need a waiver for a K1 visa?

You will need to apply for a waiver if you have filed before two or more fiancée visa petitions in the past, or if your last petition was approved in the last two years. Additionally, the USCIS will determine if they approve or not the visa for your fiancé to come to the US since it is a discretionary decision.

IMBRA Waiver for repeated K1 visa filings

IMBRA stands for International Marriage Broker Regulation Act and it targets US citizens with criminal histories. The regulations under IMBRA prohibit the issuance of a K1 visa without an approved waiver under the following circumstances:

1. A US citizen petitioner with a criminal conviction for a specified crime;
2. A US petitioner who has previously filed K1 visa petitions or had a K1 visa petition approved within the previous two years

Adam Walsh Act

The Adam Walsh Child Protection and Safety Act (AWA) was created as an effort to protect foreign-born fiancés, spouses and children. It is applied to US citizens or Lawful Permanent Residents to prevent them from using the K1 or CR1 visa for immigrating family members if they were convicted of any of the following:

1. Kidnapping (except by parent or legal guardian);
2. False imprisonment (except by parent or legal guardian);
3. Solicitation to engage in sexual conduct; 
4. Use in a sexual performance; 
5. Solicitation to practice prostitution;
6. Video voyeurism;
7. Possession, production, or distribution of child pornography;
8. Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct; and 
9. Any conduct that by its nature is a sex offense against a minor.

The only way to surpass this bar is if USCIS believes that the petitioner to the K1 visa does not pose a risk to the immigrant that is being sponsored.

If you are seeking to petition for your alien spouse and have a criminal record, you should read about what are the requirements the government asks for you to meet and under what circumstances you can proceed with this or not. If you have any questions about this or any other topic in San Diego, please contact us as we handle both immigration and criminal defense matters. Kannan Law is ready to assist you!