The EB-5 Immigrant Investor Program allows foreign nationals to get U.S. permanent residency by making a financial investment that creates 10 permanent, full-time jobs for U.S. workers. To join the EB-5 program, applicants need to meet several specific criteria. First, they must invest at least $1.05 million in a new commercial enterprise (NCE), or $800,000 if the NCE is in a targeted employment area (TEA).

Applicants also must prove that their investment capital comes from a legal source and provide the necessary documents to verify this. After their initial petition is approved, investors and their immediate family members receive conditional permanent resident status for two years. Once they can prove that their investment has fulfilled the program’s job creation requirement, they are eligible to remove conditions on their Green Cards and become unconditional lawful permanent residents.

Unfortunately, the EB-5 process may not be as straightforward for individuals with a criminal record. Criminal offenses, especially those involving moral turpitude, serious felonies, or drugs, can greatly impact eligibility.

This guide helps prospective EB-5 investors with a criminal history navigate the visa application process and understand the necessary steps to take.

What Are Background Checks?

At the start of the EB-5 visa process, a detailed background check is carried out by the U.S. Citizenship and Immigration Services (USCIS) on all EB-5 visa applicants to see if they qualify for long-term residency. This review includes looking at criminal history, so it is very important to provide complete and accurate information.

The background check process involves checking applicants’ criminal records in the U.S. and other countries where they have lived, doing fingerprint checks, and comparing these against various databases to make sure they do not pose a security threat.

If an applicant is found to have a criminal record, USCIS will look at factors like the severity and nature of the crime, the number of offenses, and the time since the conviction. Some criminal convictions can make them ineligible or lead to more scrutiny.

Crimes involving fraud, money laundering, or other serious crimes are particularly concerning. Convictions related to drugs, violence, or national security issues can greatly reduce applicants’ chances of getting an EB-5 Green Card.

What Are Crimes Involving Moral Turpitude and Aggravated Felonies?

A crime involving moral turpitude can make EB-5 applicants ineligible to enter the U.S. Courts define moral turpitude as a crime that is vile, base, or depraved and violates societal moral standards. It must be done willfully or with evil intent. Examples include:

• Fraud
• Assault
• Kidnapping
• Murder
• Crimes involving illegal drugs
• Robbery
• Abuse of a spouse or relative

However, where an offense involving moral turpitude has a maximum penalty of one year or less, and the defendant was sentenced to no more than six months in prison, it may be classified as a petty offense. This potentially makes the defendant eligible for a waiver.

An aggravated felony, on the other hand, is usually a criminal act that carries a prison sentence of one or more years. However, sometimes a misdemeanor with a jail term of less than one year is still considered an aggravated felony for immigration purposes.

To determine if a conviction falls into this category, the specifics of the crime are closely examined, often comparing the relevant state or foreign laws with U.S. federal laws. Not all crimes automatically disqualify an applicant from pursuing an EB-5 Green Card; it’s the nature and details of the crime that matter.

How Do You Apply for a Waiver?

As mentioned earlier, EB-5 applicants with criminal records may apply for a waiver of inadmissibility. Basically, a waiver is a formal request to USCIS to forgive the offense and allow the applicant to obtain permanent residency.

To be eligible for this special case waiver, you must show the hardship faced by a U.S. citizen relative, specifically a spouse or parent, who lives in the U.S. Here are the steps to take when applying for a waiver:

Petition the Criminal Court

You can ask the criminal court to erase your criminal convictions from their records. This action, called expungement, may help you secure specific job opportunities and professional licenses. However, even if the conviction is removed from your criminal record, it still counts for immigration purposes and must be disclosed when applying for an EB-5 visa.

Provide Evidence of Rehabilitation

USCIS will evaluate the rehabilitation and evidence of good moral character. Demonstrating positive changes and responsible behavior can greatly impact the assessment of your eligibility despite a criminal record.

Disclose All Information

It is vital for defendants to fully and accurately disclose their criminal history during the application process. Failing to do so can lead to a visa denial and potential charges of immigration fraud. Providing complete information is essential to ensure a fair evaluation of your case.

What Is Post-Conviction Relief?

Post-conviction relief includes various legal strategies that convicted individuals can use to contest their convictions or sentences. These methods include filing appeals, submitting habeas corpus petitions, or making motions to vacate, set aside, or correct the sentence.

While the main goal of these procedures is to address wrongful convictions or sentences, they also hold significant importance in immigration cases. Achieving post-conviction relief can potentially remove the immigration consequences associated with a conviction, helping in your goal of securing an EB-5 visa.

Is Legal Representation Important?

Having legal representation is crucial when handling immigration matters involving criminal records. With assistance from an immigration attorney, EB-5 applicants can understand how their criminal record impacts their EB-5 application. Attorneys can also assist in obtaining and presenting evidence of rehabilitation and navigating the difficulties of applying for waivers. If necessary, they can also represent you in legal proceedings.

Honesty is crucial when applying for an EB-5 visa. Applicants need to disclose all interactions with law enforcement, including dismissed charges or expunged records. Not disclosing the full truth on your application can make you ineligible for a Green Card, regardless of whether the incident itself would have disqualified you.

Some convictions do not automatically disqualify you from getting an EB-5 visa. These include simple traffic and parking violations, driving under the influence of alcohol, or other minor misdemeanors. However, multiple convictions in a short period could impact your eligibility and need evaluation.

What Is the Potential Impact of Immigration Reforms?

Immigration reforms can affect the EB-5 program and the evaluation of criminal records. Keeping up to date with changes in immigration law and policy is essential. As such, working with an attorney who is aware of current regulations and proposed changes can help ensure that your application meets the latest requirements.

How to Prepare for the Interview?

Thoroughly preparing for your interview is a crucial step in the EB-5 application process. If you have a criminal record, prepare to discuss it openly and honestly during your interview. Practice answering potential questions with your attorney and ensure you have all necessary documentation readily available.

Documentation is key to a successful EB-5 application, especially if you have a criminal record. Ensure that all documents related to your criminal history are accurate, complete, and well-organized. This includes:

• Police records and certificates.
• Court records and dispositions.
• Evidence of rehabilitation and good moral character.
• Any post-conviction relief documents.

What Is Good Moral Character?

Good moral character is a term used in U.S. immigration law that refers to behavior that meets the moral standards of the community. Evaluation is on a case-by-case basis, and a criminal record can negatively impact this assessment. However, demonstrating consistent good behavior and rehabilitation efforts can help reduce this impact.

Waivers for Other Grounds of Inadmissibility

Besides criminal records, there are other reasons you may be ineligible, such as health issues, security concerns, or prior immigration violations. It’s important to understand that waivers are available for some of these grounds as well, and your attorney can help you apply for them if necessary.

Waivers for Other Grounds of Inadmissibility

Applying for an EB-5 visa with a criminal record is challenging but not impossible. By understanding the requirements, disclosing your criminal history, and being aided by an experienced immigration attorney, you can navigate the process and potentially achieve your goal of becoming a U.S. permanent resident.

Book a free consultation with EB5AN now to get in touch with our team of leading EB-5 professionals.