While there is no outright prohibition on obtaining an EB-5 visa with a criminal record, in some cases it can complicate the process.
EB-5 Eligibility
The EB-5 Immigrant Investor Program, or EB-5 visa, is a United States visa program that provides a path to lawful permanent residency, commonly known as a Green Card, for foreign nationals who make a significant investment that creates jobs in the United States. The program was established by the U.S. Congress in 1990 to stimulate economic growth and job creation.
To qualify for the EB-5 program, an individual must meet certain requirements:
- The minimum required investment is $1.05 million in a qualified new commercial enterprise (NCE), or $800,000 if you make a capital investment in a Targeted Employement Area (TEA) in a designated rural or high unemployment region.
- The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years of the investor’s admission to the United States as a conditional permanent resident.
- The investment capital must come from a lawful source, and the investor must provide evidence to demonstrate the legitimacy of the funds.
Once an investor meets the program’s requirements and their petition is approved, they and their qualifying immediate family members can obtain conditional permanent resident status for a period of two years. After the two-year conditional period, the investor can apply to have the conditions removed and become a permanent resident, provided they can demonstrate that the required jobs have been created or will be created.
Having a criminal record may present challenges that can potentially affect your eligibility for the EB-5 visa program.
Background Check
The United States Citizenship and Immigration Services (USCIS) conducts a thorough background check on all applicants to assess their admissibility as a long-term resident of the United States. If you do have a criminal record, the agency takes into consideration factors such as the severity and nature of the criminal offense, the number of offenses committed, and the time that has elapsed since the conviction.
Certain criminal convictions may render an applicant inadmissible or subject to additional scrutiny.
Crimes involving fraud, money laundering, or other offenses that are considered “crimes of moral turpitude” or “aggravated felonies” can raise significant concerns for the USCIS. Additionally, convictions for offenses related to drugs, violence, or national security issues may drastically impact your chances of obtaining an EB-5 visa.
Each case is evaluated individually, and the USCIS considers rehabilitation and evidence of good moral character when assessing the impact of a criminal record on an applicant’s eligibility. It is crucial to provide complete and accurate information about your criminal history during the application process. Failure to disclose a criminal record can have serious consequences, including denial of the visa and potential immigration fraud charges.
Moral Turpitude
An individual with a criminal record remains eligible to apply for the EB-5 program. However, once the applicant’s I-526 Petition is approved, their criminal history can become a significant factor in the application for permanent residence.
When assessing the criminal record, two key aspects need consideration. The first is determining whether the committed crime falls under the category of a “crime involving moral turpitude.” A crime of moral turpitude renders a person ineligible to enter the United States. The Courts have defined “moral turpitude” as a crime that is vile, base, or depraved, violating societal moral standards. Additionally, it must have been committed willfully or with evil intent.
Examples of crimes classified as crimes involving moral turpitude include fraud, assault, kidnapping, murder, crimes related to illegal drugs, robbery, and abuse of a spouse or relative.
However, if an offense involving moral turpitude carries a maximum penalty of precisely one year or less, and you were personally sentenced to no more than six months of imprisonment, regardless of the duration you actually served, it can be considered a petty offense, and you may be eligible for a waiver.
Aggravated Felony
The second consideration revolves around whether the offense qualifies as an “aggravated felony.”
An aggravated felony is a criminal act that carries a prison sentence of one year or more, although this is not always the case. In certain situations, a misdemeanor or non-felony offense, with a maximum jail term of less than one year, may still be considered an aggravated felony for immigration purposes.
The United States statutes provide an extensive catalog of crimes that meet the criteria for aggravated felonies. Moreover, the specifics of the conviction itself will be scrutinized to determine its classification. This analysis involves comparing the relevant state or foreign law underlying the conviction with the corresponding federal laws of the United States.
Waivers
In the event that a previous conviction is deemed a crime involving moral turpitude, or an aggravated felony, there may be circumstances under which a waiver can be submitted for consideration.
Essentially, a waiver is a formal request to the U.S. Immigration Services, seeking forgiveness for the offense and permitting the immigrant to obtain permanent residency. To apply for a waiver, one must demonstrate the hardship faced by a U.S. citizen relative residing in the United States.
It is possible for an individual to petition the criminal court to expunge or eliminate their criminal conviction. While this action is recommended and can assist in securing specific employment opportunities and professional licenses, it does not nullify the conviction for immigration purposes.
We’re here to help
Identifying whether a conviction indeed qualifies as a crime involving moral turpitude or an aggravated felony is a complex process, sometimes leading to contradictory interpretations among the Courts.
If you have a criminal record and are considering pursuing an EB-5 visa, it is advisable to consult with an experienced immigration attorney who can evaluate your specific circumstances and guide you through the application process. They will be able to provide personalized advice and help you understand the potential impact of your criminal record on your eligibility for the EB-5 program and beyond.
In addition to offering counseling services regarding investment opportunities in the Regional Center Program, we can also connect you with the top EB-5 attorneys to assist in your investment and immigration process.
