Barrier Crimes in Virginia: Tiers, Covered Jobs, and Waivers

Barrier crimes in Virginia are the specific criminal convictions that, under Virginia Code § 19.2-392.02, block a person from working in jobs that involve caring for children, the elderly, or people with disabilities.¹ If your conviction is on the list, regulated employers generally cannot hire you, and they are required to fire you if the conviction turns up after you’ve already started work. Most of the listed offenses are permanent bars. A smaller group falls off after five years, and Virginia’s expanded record-sealing law is now the most reliable way around the restriction.

The Two Tiers of Barrier Crimes

The statute splits disqualifying offenses into clauses, and the clause your conviction falls under decides whether any time-based relief is possible.

Clause (i) is the permanent tier. A conviction here disqualifies you from regulated caregiving work forever, no matter how long ago it happened. The list is long. The main categories are:

Violent crimes: murder, manslaughter, malicious wounding, aggravated malicious wounding, robbery, carjacking, and assault offenses
Sex offenses: rape, forcible sodomy, object sexual penetration, sexual battery, and indecent liberties with a minor
Crimes against children: child abuse, child neglect, and child pornography offenses
Abduction and kidnapping, including parental kidnapping
Arson, bombing, and possession of explosive materials
Pandering, felony stalking, delivery of drugs to prisoners, and terrorism-related crimes

The legislature treated these as fundamentally incompatible with caring for vulnerable people, so time and rehabilitation do not reopen the door.¹

Clause (ii) covers burglary-related offenses, including breaking and entering with intent to commit a felony or larceny, along with related property crimes. Other clauses in the statute pick up certain fraud offenses and additional crimes. Then clause (vi) sweeps in everything else: any felony not otherwise listed counts as a barrier crime unless five years have passed since the conviction.¹

Out-of-State, Federal, and Juvenile Records Count Too

A conviction from another state or from federal court triggers the same disqualification if it is “substantially similar” to a listed Virginia offense.¹ The background check runs through both Virginia’s state database and FBI records, so a conviction in another jurisdiction will surface.

Juvenile records matter in a narrower slice of cases. For child welfare agencies and foster or adoptive homes, a juvenile adjudication of delinquency based on conduct that would have been a felony if committed by an adult counts as a barrier crime, whether the adjudication happened in Virginia or elsewhere.² People who assume a sealed juvenile record is off the table in this context are often wrong.

You do not need a criminal conviction at all to be blocked from some positions. A founded complaint of child abuse or neglect from a child protective services investigation disqualifies you from working at a child welfare agency or foster home, and from being approved as a foster or adoptive parent.³

Which Jobs Are Covered

Barrier crime rules cut across several state agencies, and the exact statute that governs your job depends on the regulator.

Child Day Care and Child Welfare

The Virginia Department of Social Services applies barrier crime screening to licensed child day centers, family day homes, child-placing agencies, religiously exempt child day centers, certified preschools, and family day systems. Unregulated family day homes and local government recreation programs must also comply if they take federal, state, or local child care funding.⁴ Foster care providers and prospective adoptive parents go through the same process.²

Assisted Living and Adult Day Centers

Assisted living facilities and adult day care centers cannot hire anyone with a Clause (i) conviction. There is one narrow exception for a single misdemeanor, addressed below, but nothing beyond that.⁵

Behavioral Health and Developmental Services

Providers licensed by the Department of Behavioral Health and Developmental Services operate under a parallel rule in § 37.2-416. It covers any “direct care position,” which includes anyone responsible for the treatment, case management, health, safety, or well-being of minors in mental health or substance abuse programs, and anyone receiving developmental services regardless of age. Sponsored residential providers, people living in their homes, and contracted workers are all included.⁶

Public Schools

Virginia school boards must fingerprint and run a criminal background check on every applicant they offer employment, whether the job is full-time, part-time, permanent, or temporary. The Central Criminal Records Exchange reports any felony or Class 1 misdemeanor conviction to the school board.⁷ Teachers, administrators, bus drivers, cafeteria workers, and support staff are all covered.

Nursing Homes and Home Health

The Virginia Department of Health administers barrier crime screening for nursing homes, home health organizations, and hospice providers, using the same core list from § 19.2-392.02. It reaches every level of staff, from registered nurses and CNAs to administrative personnel.

When a Barrier Crime Falls Off

Time-based relief exists, but it is narrower than most applicants expect, and it depends heavily on the type of facility.

Assisted living facilities and adult day centers may hire someone with a single misdemeanor barrier crime if the offense did not involve abuse or neglect and at least five years have passed since the conviction.³ The exception is mandatory. If you meet the criteria, the facility must be allowed to hire you.⁸

For prospective foster parents, a felony conviction for assault or battery against an adult (not domestic violence-related), or a drug-related offense, stops being a barrier after five years. Other offenses can require waiting periods of ten to twenty years, and in some cases the person also needs their rights restored by the Governor.⁹

Under the § 19.2-392.02 catch-all, any felony not specifically listed in the main clauses stops being a barrier crime five years after the conviction date.¹

None of these exceptions apply to positions involving children. Any barrier crime conviction is permanent for child welfare agencies, child day programs, and foster or adoptive placements. Clause (i) offenses are also permanent everywhere, in every regulated setting.

Sealing a Record

Virginia’s record-sealing statutes, which have expanded in recent years, are the one path that reliably reopens regulated jobs. When a conviction is sealed under Virginia law, the sealed offense no longer counts as a barrier crime for state-regulated employment.¹⁰ Positions that were previously closed can open up after a successful petition.

One caveat matters. A sealed Virginia conviction can still count against you under federal law. If the job involves a federal healthcare program, the federal exclusion operates on its own track and does not care that Virginia has sealed the record. Check both before assuming you’re clear.

Waivers Rarely Help

Virginia’s waiver framework is narrower than its name suggests. A person disqualified from working at a child welfare agency can apply in writing to the Commissioner of Social Services for a waiver, but the Commissioner cannot grant a waiver to anyone convicted of a barrier crime as defined in § 19.2-392.02.¹¹ In practice, the waiver is only useful when the disqualification comes from a non-barrier-crime conviction or a founded abuse or neglect complaint. If the conviction appears on the barrier crime list, no waiver is available.

Facilities regulated by the Virginia Department of Health have no waiver or variance process at all. The only relief is the automatic five-year misdemeanor exception described above.⁸

The Sworn Statement

Applicants for regulated positions must provide a sworn statement disclosing any criminal convictions, on top of the fingerprint-based background check. Lying on that statement is a Class 1 misdemeanor, which carries up to 12 months in jail and a fine of up to $2,500.³ Assuming that an old conviction won’t surface, or that the sealing petition is still pending, is not a workable strategy: the fingerprint check reaches Virginia records and FBI records both.

Federal Healthcare Exclusion

If the job involves a federally funded healthcare program, one more list applies. The federal Office of Inspector General maintains the List of Excluded Individuals and Entities, which bars anyone on it from receiving payment through Medicare, Medicaid, or similar programs. Exclusion can come from convictions for healthcare fraud, patient abuse, or certain controlled-substance felonies. Employers who hire someone on the OIG list face civil monetary penalties, so healthcare employers check both the state barrier crime list and the federal exclusion list.¹² A conviction that has fallen off Virginia’s list, or that has been sealed under Virginia law, can still leave you on the federal one.

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 63.2-1719 – Barrier Crime Construction
3
Virginia Code Commission. Virginia Code Title 63.2 Chapter 17 Article 3 – Background Checks
4
Virginia Department of Social Services. Child Day Center Barrier Crimes
5
Virginia Code Commission. Virginia Code 63.2-1720 – Assisted Living Facilities and Adult Day Centers
6
Virginia Code Commission. Virginia Code 37.2-416 – Background Checks Required Services for Children and Developmental Services
7
Virginia Code Commission. Virginia Code 22.1-296.2 – Fingerprinting Required Reciprocity Permitted
8
Virginia Department of Health. Barrier Crimes to Employment in Licensed Medical Care Facilities
9
Virginia Department of Social Services. SJ 35 Joint Subcommittee Barrier Crimes in Virginia
10
Virginia State Crime Commission. FAQs – Sealing
11
Virginia Code Commission. Virginia Code 63.2-1723 – Child Welfare Agencies Criminal Conviction and Waiver
12
Office of Inspector General, U.S. Department of Health and Human Services. Exclusions Program