Assault Offenses May or May Not Effect Eligibility for TN Visa

Under INA § 212 (a) (2), an individual is inadmissible to the U.S. due to a criminal offense if he/she has been convicted of, or admits to committing, a crime involving moral turpitude or a violation of a controlled substance law. See INA § 212 (a) (2). An individual subject to inadmissibility under INA § 212 (a) (2) is ineligible to receive a TN visa or be admitted to the U.S. under TN visa status.

Offenses characterized as “simple assaults” are generally not considered to be crimes involving moral turpitude and therefore may not render an individual inadmissible to the U.S. under INA § 212 (a) (2). See Matter of Perez-Contreras, 20 I&N Dec. 615, 618 (BIA 1992); Matter of Short, 20 I&N Dec. 136, 139 (BIA 1989). However, courts have considered assaults as crimes involving moral turpitude if committed with a “specific intent to cause physical injury” or if involving aggravating factors. See In re Ernst Solon, 24 I&N Dec. 239 (BIA 2007).

Even if an individual’s offense is classified as a crime involving moral turpitude, he/she may qualify for an exception to this ground of inadmissibility for “petty offenses.” Under the petty offense exception, a foreign citizen is not inadmissible to the U.S. where only one crime was committed and (1) the crime was committed when the individual was under 18 and was committed more than 5 years prior to the individual’s visa application; or (2) the maximum penalty possible for the crime did not exceed imprisonment for one year and the foreign citizen was not sentenced to a term of imprisonment in excess of 6 months. INA § 212 (a) (2) (A) (ii) (II).

Determining whether a criminal matter will render an individual inadmissible to the U.S. under INA § 212 (a) (2) requires analysis of the criminal law involved and an assessment of whether or not the petty offense exception applies. In the event an individual is subject to INA § 212 (a) (2), and the petty offense exception does not apply, he/she may still be eligible for a waiver that may permit entry to the U.S. on a temporary basis including under TN visa status.