See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question.
First of all, not every crime leads to serious consequences in USA. There are two kinds of crimes. Misdemeanours which are small crimes, punishment is typically less than a year and the other felonies where the punishment is a year or more, those are more serious crimes. In immigration law we look if the crime is of moral turpitude or not. If a crime is not of moral turpitude, I believe it has absolutely no consequences, unless it is a drug offence. Moral turpitude simply means that you are doing something, which reflects on your poor moral character.
The next step: is it misdemeanour or felony. If it is a felony, we almost certainly have a problem. It could lead to deportation, non-admission, and then you will need a waiver of some kind. Waivers are usually available for green card only for family based reasons. You cannot get a waiver just because you want to come to USA. So in an employment based case, and you have a felony conviction for moral turpitude crime you will not be able to come to USA.
Remember the rules are different for deportation, what is called removal and admission. So when you try to enter you could be subject to different laws, sometimes you think you are in USA and I am safe, because your lawyer told you are not going to be deported, but when you come back they won’t let you in and now you have to go back, the reason is the rules for admission are different. This is a very complex area of the law.
Question: What if I am convicted of misdemeanour involving moral turpitude?
First, how many misdemeanour convictions do you have. If you have multiple convictions, then that itself is ground for deportation removal as well as no admission. But if you have only one offence, a misdemeanour, and the actual punishment imposed was less than six months you are covered by something called petty offence exception. Which says we forgive you entirely as long as it was just a single misdemeanour.
The rules under immigration law and the rules under criminal law for conviction are very different. Sometimes you have a criminal defence counsel. He will tell you this is not a conviction. It may not be a conviction under criminal law but is a conviction under immigration law. Any kind of plea bargain you set up with the government where you are admitting directly that you committed the crime would be considered in all probability to be a conviction. So be careful when you discuss this with your immigration lawyer as well as criminal counsel.
Question: What is 212(d)(3) waiver?
Say if you got the kind of conviction where you cannot come back we can let you in on a temporary basis for a non-immigrant visa. 212(d)(3) applies only to non-immigrant visa and the situation has been a little uncertain, especially for Canadians. I think there is a certain timeframe where you can get it or for one visit you can get it.
Question: I am holding a Canadian student visa, now is my second year in Canada. I was issued a B-1/B-2 visa last year. Then I was charged of Theft under $5000 this June, and the charge goes withdrawn-diversion in July.
Normally diversion means some kind of a plea bargaining has been made.
Question: When I went to US Embassy for visa renewal this October, the officer asked my about the charge, and I answered honestly that I did it on purpose and I really regret my behaviour. He rejected my class B visa, gave me a pink paper, which says the denial is under Section 214(b), which says that alien doesn't show strong ties with home country. After I carefully searched online resources, I found that my admission of the offence will make me inadmissible to enter US, as a moral turpitude. But the officer didn't say that I need waiver to enter US. So does this mean that their denial is not based on the Crime of Moral Turpitude, but I really didn't show strong ties?
That is correct because they denied it based upon their inability to verify that you will come back.
Question: I will marry a Canadian citizen next year so it would be a strong tie then. Or do you suggest me to apply for Waiver of Ground of Inadmissibility like I-106 whatsoever?
Definitely that will make it a much stronger tie and you can try again. You might be covered by a petty offence exception.
Question: I got an offer of a big well-known US company for summer internship, and I need to apply for J1 Visa. How will the charge affect me J-1 application?
If you are covered by petty offence exception, then even J-1 is not affected but the 214(b) denial, affects your J-1. If you had a 214(b) denial, it will bar your entry for J-1, F-1, B-1, B-2. It will not bar your entry for H-1 or L-1. I suspect the officer realised you were covered by petty offence exception.