Q. What impact does having a criminal conviction have on eligibility for this process?

A. All felony offenses will be disqualifying under this process. Convictions for the following offenses are also disqualifying regardless of whether the conviction was a felony or misdemeanor. DHS reserves its discretion to determine that other offenses are disqualifying, even if not listed.

  • Murder, torture, rape, or sexual abuse;
  • Offenses involving firearms, explosive materials, or destructive devices;
  • Engaging in activities relating to peonage, slavery, involuntary servitude, and trafficking in persons;
  • Aggravated assault;
  • Offenses relating to child pornography, sexual abuse or exploitation of minors, or solicitation of minors;
  • Domestic violence, stalking, child abuse, child neglect, or child abandonment; and
  • Controlled substance offenses (other than simple possession of 30 grams or less of marijuana).

All other criminal convictions not listed above, excluding minor traffic offenses, will result in a presumption of ineligibility for this process. To overcome the presumption of ineligibility, you must provide documentation demonstrating positive factors that can be considered in overcoming this presumption and showing that you warrant a favorable exercise of discretion. You should include copies of arrest records and certified court dispositions for each arrest or criminal charge, as well as evidence that you completed your sentence, if applicable.
Even if you establish that you have met all the criteria for eligibility, and have rebutted the presumption of ineligibility, USCIS will examine the totality of the circumstances to determine whether your request should be granted as a matter of discretion for significant public benefit or urgent humanitarian reasons.

Q. If I have a conviction for a felony offense, am I eligible for this process?

A. No. If you have been convicted of a felony offense, you are not eligible for this process, and USCIS will deny your request.

Q. What offenses qualify as felonies?

A. A felony is a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. A single conviction for a felony offense is disqualifying for purposes of this process.

Q. I have pending criminal charges. Am I eligible for this process while the charges remain pending?

A. No. If you have been charged with any criminal offense and the charges remain pending, USCIS will deny your request and not refund your filing fee. You may make a request for this process once your charges are resolved. However, if your criminal charges result in a conviction, and you are convicted of a crime that renders you ineligible for this process, your request will be denied. If your charges result in a conviction and the conviction does not render you ineligible for this process, the conviction will result in a rebuttable presumption of ineligibility, which may be overcome by demonstrating positive factors that outweigh the negative factors in your case.
You should include copies of arrest records and certified court dispositions for each arrest or criminal charge, as well as evidence that you completed your sentence, if applicable. USCIS will weigh the seriousness of the conviction against the positive factors and any other relevant information in each individual case. USCIS will consider all criminal history in determining whether you merit a favorable exercise of discretion under this process.

Q. What qualifies as a national security, public safety, or border security concern?

A. If the background check or other information uncovered during the review of your request indicates that you pose a public safety, national security, or border security concern, USCIS will not grant your parole request. Indicators of national security concerns include, but are not limited to, participation in activities that threaten the United States. Indicators of public safety concerns include, but are not limited to, serious criminal conduct and criminal history. Indicators of border security concerns include apprehension following entry into the United States without authorization on or after Nov. 1, 2020; however, stepchildren who otherwise meet the eligibility criteria will not be disqualified if they entered on or after Nov. 1, 2020.

Q. Are dismissed, expunged, vacated, pardoned, deferred, annulled, invalidated, withheld, or sealed convictions subject to the presumption of ineligibility?

A. Yes. Convictions that were, for example, dismissed, expunged, vacated, pardoned, deferred, annulled, invalidated, withheld, or sealed will still create a presumption of ineligibility for purposes of this process, even if they may no longer constitute convictions for immigration purposes. You may be able to overcome this presumption, however, depending on the specific facts of your case, including but not limited to the fact that the conviction was expunged or vacated under state law, the reasons for the expungement or vacatur, the nature of the underlying offense, your age at the time of the commission of the underlying offense, and any other relevant facts surrounding the original conviction. In addition, USCIS may consider your entire criminal history, if any, along with other facts to determine, whether, under the totality of the circumstances, a favorable exercise of discretion is warranted.
NOTE: If you were never convicted (for example, you were only arrested), you are not subject to the presumption of ineligibility.

Q. If I have a criminal conviction that makes me presumptively ineligible for Keeping Families Together, how can I overcome that presumption?

A. The presumption may be rebutted on a case-by-case basis by providing evidence that demonstrates positive and mitigating factors that overcome the presumption. USCIS will weigh the seriousness of the conviction against mitigating factors relating to the conviction as well as other positive factors that suggest you merit a favorable exercise of discretion. The weight of the presumption will be guided by the nature and seriousness of the conviction. A less serious conviction, or a conviction that does not indicate you are a public safety concern, will carry less weight and can be more easily rebutted. In adjudicating parole in place requests on an individualized, case-by-case basis, the nature and seriousness of the conviction will determine the evidence needed to overcome it.
You should submit a detailed statement explaining the circumstances of the conviction, any mitigating factors, and any positive factors you want USCIS to consider and any other evidence you think may support your case. USCIS may request additional evidence from you if the evidence you submit initially is not sufficient to overcome the presumption of ineligibility. Examples of factors USCIS will consider in determining whether the presumption of ineligibility based on a criminal conviction can be overcome – such as the age and nature of the conviction, as well as positive factors about the requestor – are described below.

Q. What factors will USCIS consider to determine whether I have overcome the presumption of ineligibility because of a criminal conviction?

A. Factors that can be considered in overcoming the presumption of ineligibility due to a criminal conviction may include, but are not limited to:

  • Age of the conviction(s) (remoteness in time);
  • Your age at the time of the offense and conviction, including whether you were a juvenile at the time of the offense;
  • Sentence or penalty imposed;
  • Evidence of subsequent rehabilitation;
  • Nature of the conviction, including whether the conduct at issue was non-violent;
  • Whether the conviction was an isolated offense when considered against the rest of your history, if any (including consideration of whether multiple criminal convictions were on the same date and may have arisen out of the same act, omission or scheme of conduct);
  • Existence of a mental or physical condition that may have contributed to the criminal conduct;
  • Your particular vulnerability, including any physical or mental condition requiring treatment or care in the United States;
  • Your status as a victim of criminal activity, including domestic violence, particularly if related to the criminal conduct at issue;
  • Your status, or that of your U.S. citizen spouse, as a current or former member of the U.S. military;
  • Your status as the primary caregiver for a U.S. citizen child or elderly U.S. citizen parent or in-law;
  • Your good character, such as property ties, business ties, or value and service to the community; or
  • Other factors USCIS considers in its exercise of discretion.

Q. If I have a misdemeanor conviction for driving without a license, or driving with an expired license, will it make me ineligible for this process?

A. No. Misdemeanor convictions for minor traffic offenses, including driving without a license or driving with an expired license, will not make you ineligible for this process or create a presumption of ineligibility.

Q. Are juvenile delinquency dispositions subject to the presumption of ineligibility?

A. Yes. Juvenile delinquency dispositions will create a presumption of ineligibility for purposes of this process, even if they do not constitute convictions for immigration purposes. However, the factors considered when determining whether the presumption has been overcome, such as the nature of the underlying offense, your age at the time of the commission of the underlying offense, the length of time that has passed since the adjudication, and any other relevant facts surrounding the offense may be especially relevant in such cases. In addition, USCIS may consider your entire criminal history, if any, along with other positive factors to determine, whether, under the totality of the circumstances, a favorable exercise of discretion is warranted.
If you cannot provide the record of the disposition because it is sealed or because State law prohibits its disclosure (even to you), USCIS still may request a statement or other information from you to determine whether the presumption has been overcome and a favorable exercise of discretion is otherwise warranted.