I have an arrest or criminal record and will need to apply for a nonimmigrant visa at a U.S. consulate or embassy abroad. What should I consider before traveling?

Answer

Any arrest, charge, or conviction can complicate a nonimmigrant visa application, although a criminal record does not automatically make every applicant inadmissible. The result depends on the offense, criminal statute, disposition, sentence, and other facts. If a criminal ground of inadmissibility applies, the applicant may be eligible to request a discretionary nonimmigrant waiver under INA section 212(d)(3)(A), but approval is not guaranteed. Even if the officer does not find the applicant inadmissible on criminal grounds, the applicant still must establish eligibility for the visa and overcome all other applicable grounds of refusal.

A consular officer commonly may refuse the application under INA section 221(g) while requesting court or police records, considering a waiver, or conducting additional administrative processing. A 221(g) determination is a visa refusal when issued, although it may later be overcome, and there is no guaranteed processing time or favorable result. Before leaving the United States, the individual should have qualified immigration counsel review the complete criminal record, potential inadmissibility, waiver eligibility, and required documentation. Travel should be undertaken cautiously because the individual may be unable to return to the United States for an extended period. The Department of State provides information on administrative processing.

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