{3:30 minutes to read} When people apply for visas at US embassies and consulates around the world, the embassy or consulate adjudicates based on:

1. whether the applicant meets the criteria for the specific visa for which the applicant is applying; and,

2. the legal admissibility of the individual applying.

A visa applicant could have an approved petition by United States Citizenship and Immigration Services (USCIS), or show qualification for a type of visa applied for directly at the embassies or consulates, such as a tourist visa.

However: If an applicant has committed a criminal offense that renders them inadmissible according to immigration law, even if he or she qualifies for the visa on the merits, the applicant can be denied the visa.

One exception to that is the petty offense exception.

A petty offense is defined as a one-time offense, having a potential incarceration period of one year or less; and commanding an actual sentence of six months or less. This usually applies to cases equivalent to low-level misdemeanors, such as shoplifting or marijuana possession for personal use only.

If an applicant has been incarcerated and their sentence is for more than six months; or the maximum penalty for the crime is more than one year; or the offense is a Crime Involving Moral Turpitude (CIMT), the applicant is not eligible under the petty offense exception.

Crimes of moral turpitude consist of serious offenses might include murder, rape, fraud or drug use (essentially most crimes above a misdemeanor level).

If a client has a criminal record, consular attorneys begin the process of advocating for them by examining the law in the jurisdiction in which the offense was committed.

— If committed in the U.S., we look at state law to determine the potential incarceration period and actual sentence, as well as type of crime.

— If committed in a foreign country, we look at that country’s law to determine the potential incarceration period and actual sentence as well as type of crime..

The next step is to analyze them in regards to the application of the Immigration and Nationality Act, to see if they fall under the petty offense exception.

An applicant with a previous criminal conviction may be scared to apply for a visa, thinking there is no way to get around the conviction. The reality is that, if the applicant qualifies on all grounds on the merits for a visa, and the offense committed qualifies under the petty offense exception, the applicant should be eligible for the visa—but they will need an experienced attorney’s help.

Next month, I’ll discuss a waiver for exceptional cases when applicants do not qualify for the petty offense exception, called the 212(d)(3) waiver.

For questions or assistance with applying for a petty offense exception, please contact Steve Maggi at smaggi@smalawyers.com.