Visa Applicants With Criminal Convictions, But Suspended Sentences
This synopsis touches upon the laws regarding visa applicants who have been convicted of non-drug-related crimes, but have received suspended sentences. According to US Immigration and Nationality Act (“INA”), Section 212(a)(2)(A)(i)(II), “any alien convicted of, or who admits having committed…acts which constitute the essential elements of a violation of a crime involving moral turpitude… is inadmissible.”
The exception to this rule of law is if the maximum penalty possible for the crime of which the alien was convicted … did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed). Thus, if a person was convicted for a (non-drug-related) crime in which the maximum penalty for that crime was 1 year, and he/she was sentenced for 4 months, then that person would qualify for the exception and therefore, not automatically be deemed as inadmissible, and is eligible obtain a “waiver” of the law that is preventing the visa applicant from obtaining the visa. However, in order to receive a waiver, there are multiple actions which must be taken.
However, let’s take for example a visa applicant who was convicted of a crime in which the maximum penalty was 15 years, he/she was convicted and sentenced to 5 years. But, because of certain circumstances, (i.e., it was their first offense of any kind, etc.) he/she instead received a suspended sentence (i.e., served no prison time).The question then arises as to if this person would fall into the exception category, being that he/she did not serve any prison time (not sentenced to a term of imprisonment in excess of 6 months). To take it one step further, one could even question whether this is a considered a conviction since the sentence was suspended.
Therefore, a suspended sentence is still considered a conviction under U.S. immigration law, and even though that visa applicant received a suspended sentence and served no prison time, he/she will still be deemed as inadmissible.
According to INA Section 101(a)(48)(B) defines conviction as: “Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.”
Finally, another related issue is that of foreign convictions – even though a foreign conviction is a conviction for immigration purposes, a foreign conviction still has to be for conduct that would be deemed criminal by United States standards. For example, if a woman from an Arab country was convicted and sentenced for not wearing a hijab (head covering), then this would almost certainly not be considered a conviction in the eyes of the U.S. for purposes of immigration law.
All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.
This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.