Barrier Crimes in Virginia: Categories, Duration, and Waivers

Barrier crimes in Virginia are the criminal convictions that disqualify a person from working in jobs that involve caring for children, the elderly, or people with disabilities. They are defined in Virginia Code § 19.2-392.02, and they apply across licensed child care, foster and adoptive placement, behavioral health, developmental services, nursing homes, assisted living, home health, and emergency medical services. Most barrier crime convictions create an automatic hiring prohibition. For many of them, no waiver exists.

The Six Categories of Barrier Crimes

Section 19.2-392.02 sorts barrier crimes into six clauses. Which clause your conviction falls under decides almost everything that follows, because each clause carries its own rule about whether the bar is permanent or temporary.¹

Clause (i) covers violent and sexual offenses. This is the largest group: homicide, malicious wounding, kidnapping, robbery, rape, sexual battery, child pornography, arson, abuse or neglect of children or incapacitated adults, and dozens of other serious crimes.
Clause (ii) covers burglary offenses, including statutory burglary under §§ 18.2-89 through 18.2-94.
Clause (iii) covers felony convictions for manufacturing, distributing, or selling controlled substances.
Clause (iv) covers felony possession of a controlled substance under § 18.2-250.
Clause (v) covers any conviction that requires registration on the Sex Offender and Crimes Against Minors Registry.
Clause (vi) is the catch-all: any felony not already covered by clauses (i) through (v).

The statute reaches “substantially similar” offenses from other states, so a conviction in Maryland, North Carolina, or anywhere else that matches a Virginia barrier crime is treated the same way.

How Long the Bar Lasts

Clauses (i), (ii), (iii), and (v) are permanent in most regulated industries. Time, rehabilitation, and clean behavior do not lift the restriction on their own.

Clauses (iv) and (vi) are time-limited. Clause (vi) felonies drop off five years after the conviction by the terms of the definition itself. For behavioral health providers regulated by the Department of Behavioral Health and Developmental Services, a clause (iv) felony drug possession conviction bars hiring for five years from the conviction date, and that period can run longer if the person is still on probation or parole or still owes court costs.²

A narrow misdemeanor exception also exists. In DBHDS-regulated settings, a provider may hire someone with no more than one misdemeanor assault or assault and battery conviction (§ 18.2-57 or § 18.2-57.2) if 10 years have passed and the offense did not happen while the person was working in direct care.² For nursing facilities licensed by the Virginia Department of Health, a single misdemeanor barrier crime that did not involve abuse or neglect clears after five years.³ For child day centers, an employer may hire someone with a single misdemeanor assault conviction under § 18.2-57 after 10 years, as long as the offense did not occur while the person worked at a child day center and did not involve a minor.⁴

Jobs and Settings Where These Rules Apply

Three Virginia agencies enforce the barrier crime rules, and together they cover most work with vulnerable populations.

The Department of Social Services regulates licensed child day centers, family day homes, child-placing agencies, foster and adoptive homes, and child welfare agencies.
The Department of Behavioral Health and Developmental Services regulates providers of developmental services, mental health services, substance abuse treatment programs, and sponsored residential services.
The Virginia Department of Health regulates nursing homes, hospice programs, assisted living facilities, home health agencies, and emergency medical services.

The reach is wider than most applicants assume. The screening does not just apply to nurses, therapists, and teachers. Administrative staff, maintenance workers, contractors, and unpaid volunteers who have any contact with residents, patients, or children, or access to their personal records, are subject to the same background check. A temporary staffing agency sending a worker to a behavioral health facility must verify that person’s background before the first shift.²

Out-of-State and Juvenile Convictions

A conviction from another state counts if the offense is “substantially similar” to a Virginia barrier crime. That phrase appears in every clause of § 19.2-392.02, so an older case from another jurisdiction will not quietly fall outside the rule.¹

For child welfare agencies and foster or adoptive homes, the rule goes further. Juvenile adjudications of delinquency based on conduct that would be a felony if committed by an adult count as barrier crime convictions, whether the adjudication happened in Virginia or elsewhere.⁵ This is unusual, because juvenile records are generally sealed and kept out of adult background checks in other contexts.

When a Waiver or Exception Is Possible

For most barrier crimes, there is no discretionary waiver. The Virginia Department of Health has no waiver or variance process at all for its licensed facilities. If a conviction meets the statutory definition, the facility cannot hire the person, and no one at the agency can override that.

The Department of Social Services has a written waiver process under § 63.2-1723 for people seeking to work at or volunteer with child welfare agencies, but it carries a sharp limit: the Commissioner cannot grant a waiver to anyone convicted of a barrier crime as defined in § 19.2-392.02.⁶ The waiver covers other disqualifying convictions. If the disqualification is a barrier crime, the waiver route is closed.

Child-placing agencies that approve foster and adoptive parents have a few narrow, offense-specific exceptions, each with a long waiting period and documented rehabilitation requirements.⁷

Statutory burglary under clause (ii): approval is possible if the Governor or another authority has restored the person’s civil rights and 25 years have passed.
Drug distribution under clause (iii): approval requires restored civil rights and 20 years.
Felony drug possession under clause (iv): approval requires 10 years, or 8 years with completion of substance abuse treatment and drug testing.

These are not general waivers. They apply only to foster and adoptive approval through child-placing agencies, and they require specific milestones rather than the passage of time alone.

If Your Record Has Been Sealed

Virginia’s record-sealing law offers real relief for some people with barrier crime convictions. The Virginia State Crime Commission has stated that a sealed offense is not considered a barrier crime under Virginia law.⁸ A sealed conviction should not appear on a Virginia criminal history search and should not trigger a barrier crime disqualification under state law.

Federal law is a different story. The FBI search that forms part of the standard fingerprint screening operates under its own rules, and a sealed Virginia conviction may still surface on that side. For positions tied to federal funding or federal oversight, a sealed record may not fully clear the path. Anyone in that situation should talk to an attorney before assuming they are in the clear.

The Background Check Itself

Employers in regulated industries run a fingerprint-based criminal history check through the Virginia State Police before anyone starts work. The check queries the Virginia Criminal History Records Exchange and FBI criminal history files. The combined fee is $27.00.⁹ The required paperwork is either the SP-167 or SP-230 form, both available through the Virginia State Police.¹⁰

If your record includes an older arrest, pulling certified copies of the final court order and disposition from the clerk of court where the case was heard can head off problems. Screening agencies rely on the exact charge and outcome to decide whether a conviction fits a particular clause, and ambiguity in the paperwork tends to default against the applicant.

1
Virginia Code Commission. Virginia Code 19.2-392.02 – National Criminal Background Checks by Businesses and Organizations Regarding Employees or Volunteers Providing Care to Children or the Elderly or Disabled
2
Virginia Code Commission. Virginia Code 37.2-416 – Background Checks Required; Services for Children and Developmental Services
3
Legal Information Institute. 12 Va. Admin. Code 5-371-75 – Criminal Records Check
4
Virginia Code Commission. Virginia Code Title 22.1 – Education, Article 5 – Background Checks
5
Virginia Code Commission. Virginia Code 63.2-1719 – Barrier Crime; Construction
6
Virginia Code Commission. Virginia Code 63.2-1723 – Child Welfare Agencies; Criminal Conviction and Waiver
7
Virginia Department of Social Services. Child Placing Agencies Barrier Crimes
8
Virginia State Crime Commission. FAQs: Sealing
9
Virginia State Police. Virginia Criminal History Record Check
10
Virginia State Police. Forms – Section: Criminal History / Background Check / Sex Offender Name Search