TV network TLC shows the highs and lows – plenty of lows – for a motley crew of U.S. citizens and the foreign nationals they hope to marry in the hit reality show 90 Day Fiancé. While plenty of 90 Day Fiancé is meltdown and melodrama reality TV show fodder, the show also provides valuable insight into some real-life scenarios we see as immigration attorneys.
This season, we look to Jon and Rachel Walters in the 90 Day Fiancé spin-off show 90 Day Fiancé: Before the 90 Days, who must navigate a path to legal residence for Jon, who has an extensive criminal record. Jon and Rachel met singing duets on a karaoke app and began a long-distance relationship. When the couple wanted to start dating seriously, they realized Jon’s criminal history, including multiple arrests and charges for assault – would prevent him from getting a visa to visit the United States.
What You Can Do if your Fiancé has a Criminal Record
While a criminal record does not preempt entry to the United States, criminal convictions can create substantial roadblocks to entry, legal residence and citizenship. Influencing factors can include the type of conviction, the severity of charges, history of restitution and good behavior since the conviction, and how long ago the conviction occurred.
Consider Consular Processing of Form I-130
Many people choose to use the K-1 visa, or fiancé visa, which provides a three-month grace period for a fiancé to live in the United States before they are married and can be sponsored by their U.S. citizen spouse. For some couples, it makes more sense to get married outside of the United States and move right to the Form I-130 sponsorship process. Federal immigration law states that U.S. citizens can sponsor spouses for permanent residence, essentially moving them to the front of the “line” for permanent resident applications from their country.
For Jon and Rachel, this option proved to be the most palatable given he was unable to travel to the United States because of his criminal record.
Form I-130
To show proof of the marriage and move to the I-130 sponsorship process, a couple needs to be able to prove the following:
- Citizenship information (birth certificate or naturalization certificate) of sponsor
- Marriage certificate
- Proof of termination of any previous marriages
- Proof the marriage is not fraudulent (photos, joint bank accounts, lease, plane tickets for trips taken together, etc.)
Form DS-260
For applicants living abroad, once the I-130 is approved, the application will move to the National Visa Center (NVC), where the application is processed before being forwarded to the U.S. Embassy or Consulate of the spouse’s home country. The NVC application requires:
- Form DS-260, a green card application filed online
In the Form-260, you will be asked to answer detailed questions about your criminal history. It is incredibly important that you answer questions honestly, and in detail. Be aware that the definition of “conviction” means different things in different countries. If in doubt as to whether you were convicted of a crime, consult an experienced immigration attorney.
- Civil documents for the spouse beneficiary (such as birth certificate, marriage certificate, divorce certificate(s)
- Divorce certificate(s) for the sponsoring spouse (if applicable)
- Citizenship information (birth certificate or naturalization certificate) of sponsor
- Copy of police clearance certificate for the spouse seeking a green card
- Proof that the sponsoring spouse can financially support the individual being sponsored
It takes the NVC up to 5 months to process green card petitions. If your documents are accepted, your case will be passed to the U.S. Embassy or Consulate for the final interview.
Retain ALL Documents Related to Arrest, Adjudication and Restorative Efforts, and Always Tell the Truth
If you have a criminal record, expect it to be thoroughly vetted by the National Visa Center and the U.S. Embassy. Lying about a DUI on an immigration form can make you ineligible for a U.S. green card, even though the criminal act of driving under the influence would not preclude you from becoming a permanent resident.
Be prepared to answer in detail and provide originals or court-certified copies of documents about all aspects of your arrests and convictions, including:
- When and where the charges took place and conviction records
- The exact charges upon adjudication of your case
- Information about discharge or expungement of charges
- History of restitution or restorative measures
Aggravated felony convictions are grounds for immediate dismissal of green card petitions, including drug convictions, murder, rape, sexual abuse of a minor, and fraud.
Hire an Experienced Attorney
In media interviews, Rachel has insisted it is more expensive to apply for a green card because of Jon’s criminal record. The cost of the visa petition with USCIS remains the same regardless of whether you have a criminal record. With that being said, the cost of retaining an attorney will be slightly more and will reflect the extra steps necessary in preparing your application and preparing you for a successful interview. While it is possible for some people to navigate the process of sponsoring a spouse without an attorney, if your spouse has been convicted of a crime, it is essential to seek the guidance of someone who can counsel you through the entire process.
We wish Jon and Rachel the best as they continue to follow their dream of living together in the United States – but like all other 90 Day Fiancé fans, we will have to stay tuned to see how it all transpires. If you have questions about your fiancé or spouse visa, contact us today.
