Impact of Pardons on Visa Ineligibility Clarified in New DOS Rule
What changed about pardons and visa ineligibility?
The U.S. State Department updated its regulations to clarify how pardons affect criminal-related visa ineligibilities. In short, a state pardon or expungement does not remove a visa ineligibility based on certain convictions. A full and unconditional presidential pardon may affect limited grounds, but this is rare. Therefore, most applicants must rely on statutory waivers (such as INA §212(h)) rather than pardons when seeking a visa.
What this means in practice
Inadmissibility (visas): Consular officers generally cannot treat a state pardon, expungement, or “legislative pardon” as erasing ineligibility under INA §212(a)(2)(A) (CIMT) or §212(a)(2)(B) (multiple convictions). Presidential pardons are the exception noted in the rule.
Deportability (inside the U.S.): For people already admitted, a full and unconditional state or presidential pardon can eliminate some criminal deportability grounds under INA §237(a)(2)(A)(vi); however, it does not fix inadmissibility for future visas.
Your options if you have a past conviction
212(h) waiver (for certain crimes): Many applicants pursue a §212(h) waiver rather than relying on a pardon. Eligibility turns on the type of offense, hardship to qualifying relatives, and other factors. We evaluate whether §212(h) or another path fits your case.
Other strategies: Sentencing/“petty offense” exceptions, youth-offense exceptions, and careful CIMT analysis may avoid a finding of inadmissibility altogether. We analyze your statute and records line by line.
Evidence checklist for a visa case with criminal history
Certified docket, complaint, judgment, and sentence
Proof of rehabilitation (programs, treatment, employment, community service)
Family hardship documentation for any waiver request
If applicable, any pardon documentation (we will explain its limited effect at the visa stage)
As a result, your file presents a complete, accurate picture.
FAQs
Does a state pardon fix my visa inadmissibility?
No. State pardons and expungements generally do not remove visa ineligibility under §212(a)(2)(A) or (B).
Do presidential pardons help?
Possibly, for certain §212(a)(2)(A) or (B) ineligibilities—but presidential pardons are rare and the rule’s text is narrow. Most applicants still need a statutory waiver.
If I’m already a permanent resident, can a pardon stop deportation?
Sometimes. A full and unconditional pardon can eliminate certain deportability grounds under §237(a)(2)(A)(vi), which is different from consular inadmissibility.
How we help
First, we identify whether your issue is inadmissibility (visa) or deportability (inside the U.S.). Next, we analyze the conviction and exceptions, and assess §212(h) or other waivers. Then, we prepare a thorough brief and evidence packet. Finally, we track deadlines and respond to any requests for evidence.
Have a conviction and need a visa plan? Schedule a consultation or call (562) 495-0554.
Disclaimer: General information only. Policies and FAM guidance change; we confirm the current rule for your case at the time of filing.
The Department of State (DOS) published a final rule amending 22 CFR Part 40 regarding the effect of certain pardons on criminal-related grounds of visa ineligibility. This final rule, effective August 22, reflects the DOS’s agreement with the Seventh Circuit Court of Appeals in its recent opinion in Wojciechowicz v. Garland. The DOS finds that the court’s analysis regarding the lack of underlying authority in the Immigration and Nationality Act (INA) giving effect to such pardons extends to the Department’s own regulation at 22 CFR 40.22(c) regarding ineligibility for multiple criminal convictions.
The Rule’s Background and Rationale
For decades, the DOS’s regulations at 22 CFR 40.21(a)(5) and 40.22(c) have provided that a full and unconditional pardon from a U.S. state governor could remove a ground of visa ineligibility related to convictions for a single crime involving moral turpitude or for multiple criminal convictions. However, the Seventh Circuit’s decision in Wojciechowicz directly challenged this long-standing policy. In that case, the court determined that the INA, as amended by Congress, does not contain a statutory provision that gives effect to a gubernatorial pardon for inadmissibility under INA § 212(a)(2)(A)(i) or INA § 212(a)(2)(B). The court ruled that an agency regulation cannot override a clear statutory text.
The new final rule from the DOS agrees with this legal reasoning. The DOS is amending its regulations to align with the court’s finding that Congress did not provide a statutory exception for state pardons for certain criminal-related inadmissibility grounds. As a result, the Department is now explicitly stating that a state-level pardon does not remove visa ineligibility for these specific criminal convictions.
Implications for Visa Applicants
The most significant change is the explicit distinction the rule makes between state pardons and presidential pardons. The INA provides a statutory exception for presidential pardons, but not for pardons granted by a state governor. The final rule removes the language that previously gave effect to gubernatorial pardons for inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B), while retaining the provision for presidential pardons.
This means that a visa applicant who has been convicted of a crime involving moral turpitude or multiple criminal convictions that would otherwise make them inadmissible will not have that inadmissibility waived simply by obtaining a pardon from a state governor. The rule implements the Seventh Circuit’s interpretation, making it the official policy of the Department of State and resolving the conflict between the agency’s regulations and the INA’s statutory text.
