When applying to adjust status to U.S. permanent resident -- that is, to get a green card -- you will be asked whether you have been "arrested, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffice violations." In other words, U.S. Citizenship and Immigration Services (USCIS) wants to know about any criminal-related acts on an applicant's record, except for traffic tickets. Convictions for DUI (driving under the influence; also sometimes called DWI, or driving while intoxicated), as well as reckless driving are more serious than traffic tickets, and you're expected to report them.
But don't automatically assume that you will be denied the green card. Although certain criminal acts do make a person "inadmissible," in which case a green card (or other visa) will be denied, not all do -- this area of law is quite complex. Talk to an attorney if you face this situation, using the guidance below as background information.
What's a Conviction?
Conviction means that a court (a judge or jury) has found you guilty or you have entered a plea of guilty or nolo contendere (in which you refuse to enter a plea). In addition, the judge must have sentenced you to some form of punishment, penalty, or restraint of liberty.
Whether you actually serve the sentence or it is suspended does not matter to whether you're considered to have been convicted. In fact, whether your state's law refers to the decision as a conviction doesn't matter, either. The federal immigration laws override this with their own concept of what a conviction is. (See the Immigration and Nationality Act (I.N.A.) Section 101(a)(48)(A), 8 U.S.C. Section 1101(a)(48)(A).)
What Types of Criminal Convictions Make a Person Inadmissible?
Very generally, people who have been convicted of crimes involving mortal turpitude are inadmissible. Moral turpitude is hard to define -- decisions are made on a case-by-case basis. Some courts have described moral turpitude as base, vile, depraved, contrary to common societal norms of morality, or involving an evil intent or a corrupt mind.
People who have committed two or more crimes of any sort, with a combined sentence of five or more years, are also inadmissible.
Certain listed crimes (such as prostitution or selling drugs) can also make a person inadmissible, but DUIs and reckless driving are not on that list.
Will a DUI Conviction Make You Inadmissible?
For a crime to be considered a crime involving moral turpitude (CMT), it must have been done with intent. DUIs do not require any intent, so one DUI will typically not be considered a crime involving moral turpitude.
However, if the DUI was commited along with another offense -- such as reckless driving or use of illegal drugs -- or if aggravating factors were present, like driving without a valid driver’s license, with a child in the car, or having injured someone, it may be a different story. For example, driving drunk with a child in the car could be seen as disregard for the safety of others, thus supplying the intent required to call the crime a CMT.
Not all DUIs involve alcohol (or solely alcohol). In some cases, illegal use of a controlled substance is part of the conviction -- and it happens to be a separate ground of inadmissibility.
One more thing to consider is that if the DUI or drug use stems from an addiction, USCIS could ask for a medical report and then find you inadmissible on public health grounds.
Will a Reckless Driving Conviction Make You Inadmissible?
Reckless driving refers to driving a vehicle in a manner that endangers the lives of others on the road. A conviction for reckless driving may involve moral turpitude. As with DUIs, additional charges or aggravating circumstances can also increase the likelihood that USCIS will call find moral turpitude, or that the original act will add up to multiple crimes and therefore make the applicant inadmissible.
Is a Waiver Available?
For most crimes of moral turpitude (other than serious crimes such as murder or torture), a limited waiver is available to the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident. You would need to show that your U.S. citizen or lawful permanent resident spouse, parent or child would suffer extreme hardship if your adjustment of status was denied.
Don't Attempt to Conceal the Conviction
Hiding past criminal incidents will get you nowhere. For one thing, the fingerprint check will likely lead to discovery. For another, making false representations in order to obtain an immigration benefit is a ground of inadmissibility by itself.
Getting Legal Help
If you have a DUI or reckless driving conviction, or any run-in with the justice system, consult with an experienced U.S. immigration attorney -- ideally one who specializes in the intersection of criminal and immigiration laws.
Don't just rely on what your criminal attorney says. Countless cases exist where the criminal attorneys thought they were doing the right thing for the client, for example advising "plead guilty to this and you can avoid jail time." Little did they realize that certain sorts of guilty pleas could lead to the immigrant's becoming inadmissible to (or, if they've already gotten a green card, removable from) the United States.
