Pleas with a pending application
An immigration application is decided on the record as it stands on the day of the decision, not the day it was filed. A plea entered while the case is pending is on that record. Each kind of application has its own criminal test: admissibility for adjustment, the particularly serious crime bar for asylum, the felony-or-two-misdemeanors rule for TPS, good moral character through the oath for naturalization. This page goes through each test and then through the one thing you control, which is when and to what you plead.
Current as of October 2026. We re-check this page regularly and after any rule change.
The plea and the application are on two calendars, and the immigration calendar does not wait for the criminal one. If the application is decided first, the record has no conviction on it. If the plea is entered first, it does. Which comes first is sometimes within your control and sometimes not, and every decision about the plea has to be made knowing which test the application applies. The tests are below. The categories a plea can fall into are on the crimes and removal page, and the pleas that stay outside them are on the plea strategy pages.
Each application has its own test
| Application | The test | What a plea can do | Authority |
|---|---|---|---|
| Adjustment of status (family, employment, any category) | Admissibility under INA 212(a)(2) | A CIMT or a drug conviction or admission makes you inadmissible; 212(h) waives a CIMT and a single small marijuana possession, nothing else on the drug ground | INA 245(a)(2); INA 212(h) |
| Asylum | The particularly serious crime bar | An aggravated felony is per se a bar; other offenses are weighed case by case | INA 208(b)(2)(A)(ii), (B)(i) |
| Withholding of removal | The particularly serious crime bar | An aggravated felony with an aggregate sentence of five years or more is per se a bar; other offenses case by case | INA 241(b)(3)(B) |
| Temporary Protected Status | Any felony, or two or more misdemeanors, committed in the United States; and the 212(a)(2) grounds | One felony or a second misdemeanor ends eligibility; the 212(a)(2) grounds cannot be waived for TPS except the small marijuana offense | INA 244(c)(2)(A)(iii), (B)(i); 8 C.F.R. 244.1 |
| Naturalization | Good moral character for the statutory period and through the oath | A CIMT, a drug offense, 180 days of confinement or an unfinished probation term during the period is enough to deny it; an aggravated felony is a permanent bar | INA 316(a)(3), 319(a); 8 C.F.R. 316.10 |
| Cancellation of removal, non-permanent resident | Good moral character for ten years and no conviction under 212(a)(2), 237(a)(2) or 237(a)(3) | Any conviction on those lists bars it | INA 240A(b)(1) |
| U visa | Admissibility, with a broad waiver | The 212(a)(2) grounds can be waived in the public or national interest | INA 212(d)(14) |
| Voluntary departure at the end of proceedings | Good moral character for five years; no aggravated felony | An aggravated felony bars it at either stage | INA 240B(a)(1), (b)(1)(B), (C) |
These tests are not exclusive. A person with a pending adjustment application who is also in removal proceedings is tested for admissibility and, if the case goes badly, for cancellation. A resident with a pending N-400 is tested for character and, once the record is in front of the agency, for deportability. When more than one test applies, the plea has to pass all of them, and the strictest one controls the negotiation.
Adjustment pending
INA 245(a)(2) makes admissibility a condition of the grant, and the condition is tested when the application is decided. A conviction entered while the case is pending is on the record at that moment. So is an admission: a plea colloquy that admits the elements of a CIMT or a drug offense can satisfy INA 212(a)(2)(A)(i) even where the disposition is not a conviction under INA 101(a)(48)(A). If the plea puts you on the list, the application needs a 212(h) waiver, which covers a CIMT, a single offense of simple possession of 30 grams or less of marijuana, the multiple-conviction ground and prostitution, on a showing of extreme hardship to a citizen or resident spouse, parent, son or daughter, or after 15 years with rehabilitation, or as a VAWA self-petitioner. For a violent or dangerous crime, the waiver requires extraordinary circumstances or exceptional and extremely unusual hardship. 8 C.F.R. 1212.7(d); Matter of Jean, 23 I&N Dec. 373 (A.G. 2002).
The petty offense exception is the first thing to check. A single CIMT with a maximum possible penalty of one year or less and a sentence imposed of six months or less, counting any suspended part, is not a 212(a)(2)(A)(i)(I) offense at all and needs no waiver. INA 212(a)(2)(A)(ii)(II). A drug conviction has no exception, and 212(h) will not reach it unless it is the single small marijuana possession. For a person with a pending family case, the question "is there a non-drug plea available" comes before every other question.
Asylum pending
Asylum is barred for a person convicted of a particularly serious crime, and an aggravated felony is per se a particularly serious crime for asylum. INA 208(b)(2)(A)(ii), (B)(i). A plea that is an aggravated felony ends the asylum application by operation of the statute. A plea that is not is weighed under Matter of Frentescu, 18 I&N Dec. 244 (BIA 1982), and Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007): the nature of the conviction, the sentence, the circumstances and underlying facts, and whether they show that the person is a danger to the community. The sentence is a factor, which is a second reason to negotiate it down. Withholding of removal is barred for a particularly serious crime, with an aggravated felony or felonies carrying an aggregate term of at least five years per se serious under INA 241(b)(3)(B). Deferral of removal under the Convention Against Torture has no criminal bar. 8 C.F.R. 1208.17(a). The asylee and refugee page goes further, and the asylum case itself is the subject of our site asylumadvocate.com.
The bars to asylum, including the particularly serious crime bar, as they are litigated in the asylum case itself.
Bars to asylum →
visa4love.comMarriage and family-based immigration: the pending I-130 and I-485, and the adjustment case that has to survive a conviction entered while it waits.
Family and marriage cases →
TPS, naturalization and U visa cases
TPS pending
A person convicted of any felony or of two or more misdemeanors committed in the United States is not eligible, and neither is a person inadmissible under the criminal grounds of 212(a)(2), which cannot be waived for TPS other than the 30-gram marijuana offense. INA 244(c)(2)(A)(iii), (B)(i). For TPS, a felony is a crime punishable by more than one year and a misdemeanor is a crime punishable by one year or less and more than five days, 8 C.F.R. 244.1, so the count turns on the maximum for the offense, not on what the state calls it or what sentence you got. A first misdemeanor plea leaves TPS intact on the count and may still trip the 212(a)(2) grounds. A second one ends it. The TPS and DACA page works through the counts state by state.
Naturalization pending
Good moral character is required for the statutory period, five years or three for the spouse of a citizen, and through the oath. INA 316(a)(3), 319(a); 8 C.F.R. 316.10(a)(1). A plea between filing and the oath is inside the period. The conditional bars during the period include a CIMT (subject to the petty offense exception), a controlled-substance violation other than a single small marijuana possession, two or more convictions with aggregate sentences of five years or more, and confinement of 180 days or more; the permanent bars are murder and an aggravated felony on or after November 29, 1990. 8 C.F.R. 316.10(b). An application will not be approved until any probation, parole or suspended sentence has been completed. 8 C.F.R. 316.10(c)(1). And under INA 318 no application may be decided while removal proceedings are pending. A conviction that makes a resident deportable can therefore turn a pending N-400 into a removal case, which is why the naturalization page reads the record against 237(a)(2) first.
U visa pending
The 212(a)(2) grounds can be waived for a U applicant under INA 212(d)(14) in the public or national interest, which is a broader waiver than 212(h). A plea during a pending U case is still on the record and still has to be waived, and a plea that is an aggravated felony or a drug offense makes the waiver request harder, not impossible. What the agency weighs in that waiver is a question to bring to us.
Why the timing matters, and what to tell the criminal lawyer
Three dates on the criminal side are fixed or nearly fixed. The offense date cannot move, and under INA 240A(d)(1) and Matter of Perez, 22 I&N Dec. 689 (BIA 1999), it is the date that stops the cancellation clock. The arrest date starts the criminal case and, for an inadmissible person charged with theft, burglary, shoplifting or assault of an officer, can be the date detention becomes mandatory under the Laken Riley Act. The plea date is the one you have some say over, and it decides whether the conviction exists when the application is decided.
A plea before the decision puts the conviction on the record for that decision. A decision before the plea does not, though the conviction will be on the record for the next application, and for naturalization the statutory period runs backward from the filing, so a conviction from within the last five years is inside it whenever it was entered. An adjournment of the criminal case is sometimes worth asking for and sometimes not, and the answer depends on which test applies and how close the application is to decision. That is a conversation to have with both lawyers in the room.
What each lawyer needs from the other
Tell the criminal lawyer that an application is pending, what kind, and the date it was filed. Ask the criminal lawyer for five things about the offered plea: the exact offense and subsection, the maximum possible sentence for it, the sentence that will be imposed including any suspended part, the length of any probation or supervision, and what the plea colloquy will require you to admit. Those five answers are what the immigration lawyer reads against the test above. A sentence of six months or less can keep a CIMT inside the petty offense exception. A sentence of 364 days rather than a year keeps a theft or a crime of violence off the aggravated felony list. A shorter probation term brings the naturalization date closer. And under Padilla v. Kentucky, 559 U.S. 356 (2010), the criminal lawyer is required to advise you about all of this before the plea is entered.
Read next: naturalization and a criminal record, TPS and DACA, the petty offense exception, or your right to immigration advice before a plea.
Common questions
My green card application was filed before the arrest. Does the plea still count?
Yes. Adjustment of status requires that you be admissible, INA 245(a)(2), and admissibility is decided when the application is adjudicated. A conviction or a qualifying admission entered while the case is pending puts you on the inadmissibility list for that decision. A CIMT may fall inside the petty offense exception or be waived under 212(h); a drug conviction other than a single small marijuana possession cannot be waived under 212(h) at all.
Can a plea end my asylum case?
A conviction of a particularly serious crime bars asylum, and an aggravated felony is per se a particularly serious crime for asylum. INA 208(b)(2)(A)(ii), (B)(i). Other convictions are weighed case by case under Matter of Frentescu and Matter of N-A-M-, looking at the nature of the offense, the sentence, the circumstances and whether they show danger to the community. Withholding of removal has its own version of the bar, and deferral under the Convention Against Torture has no criminal bar.
I am on probation. Can my naturalization be approved?
No. Under 8 C.F.R. 316.10(c)(1), an application will not be approved until any probation, parole or suspended sentence has been completed, and conduct during that period is considered. Good moral character is also required through the oath, INA 316(a)(3), so a conviction between the interview and the ceremony counts. And under INA 318 no application may be decided while removal proceedings are pending.
What should I tell my criminal lawyer about the pending case?
That there is one, what kind it is, and where it stands. The criminal lawyer needs to know whether the test is admissibility, good moral character, the TPS misdemeanor count or the particularly serious crime bar, because the plea that passes one can fail another. Ask for the offense category, the maximum possible sentence, the sentence to be imposed, the length of any probation, and what the record will say, and give those to the immigration lawyer before the plea date.
Tell us about the charge before you take the plea. Not after.
You get a free conversation with an immigration attorney, in your language. We speak English, Russian, Spanish and Uzbek in-house, and we bring in a live interpreter for anything else. We will read the charge against the immigration statute, tell you what the offered plea does to your status and to every form of relief, and tell you what to ask your criminal lawyer to negotiate instead. If the plea has already been entered, we will tell you what can still be done.