Barrier Crimes in Virginia: Covered Jobs, Waivers, and Background Checks

Barrier crimes in Virginia are the criminal convictions that disqualify someone from working in jobs involving the care of children, the elderly, or people with disabilities. They are defined in Virginia Code § 19.2-392.02 and sorted into six clauses. Some create a permanent hiring ban; others expire after a set number of years. For most of them, no waiver exists, and the employer has no discretion to look past the record.

How Virginia Defines a Barrier Crime

Section 19.2-392.02 lists the disqualifying offenses in six clauses, and the clause your conviction falls under decides everything that follows: whether the bar is permanent, whether time will lift it, and whether any exception applies.¹

Clause (i) covers violent and sexual offenses: 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. Permanent bar.
Clause (ii) covers burglary offenses, including statutory burglary under §§ 18.2-89 through 18.2-94. Permanent bar.
Clause (iii) covers felony convictions for manufacturing, distributing, or selling controlled substances. Permanent bar.
Clause (iv) covers felony possession of a controlled substance under § 18.2-250. Time-limited.
Clause (v) covers any conviction that requires registration on the Sex Offender and Crimes Against Minors Registry. Permanent bar.
Clause (vi) covers any other felony not already listed. Barrier for five years from the date of conviction.

Two clauses matter most to people expecting a fresh start. Clause (iv) felony drug possession catches many people off guard because it sounds like it should sit alongside clause (iii) distribution, but the legislature treated possession differently and made it time-limited. Clause (vi) sweeps in every other felony on the books, from embezzlement to forgery, and puts them all on a five-year clock.

When a Barrier Ends, and When It Doesn’t

Clauses (i), (ii), (iii), and (v) do not expire on their own. No amount of time, rehabilitation, or clean record lifts them in most regulated industries. If your conviction sits in one of these clauses, you are permanently ineligible for covered positions unless a narrow, offense-specific exception applies.

For behavioral health providers regulated by the Department of Behavioral Health and Developmental Services (DBHDS), clause (iv) felony drug possession bars hiring for five years from the conviction date, and longer if the person is still on probation, parole, or has outstanding court costs.² Clause (vi) felonies expire after five years by the terms of the definition itself.

A separate, automatic exception exists for a single misdemeanor. In DBHDS settings, someone convicted of no more than one misdemeanor assault or assault and battery under § 18.2-57 or § 18.2-57.2 can be hired if 10 years have passed and the offense did not happen while the person was working in a direct care position.² For nursing facilities licensed by the Virginia Department of Health (VDH), a single misdemeanor barrier crime that did not involve abuse or neglect clears after five years.³ The specific waiting period depends on the industry.

Which Jobs Are Covered

The reach of these restrictions is wider than most applicants expect. Three state agencies enforce the barrier crime rules across the workforce they regulate, and the same definition in § 19.2-392.02 applies to all of them.

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

The rules do not stop at nurses, teachers, and direct-care staff. Administrative workers, maintenance staff, contractors, and unpaid volunteers who have contact with residents, patients, or children, or who have access to their records, all fall inside the screening requirement. Temporary staffing agencies must verify a worker’s background before sending that person to a regulated facility.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 language appears in every clause of § 19.2-392.02, so a Maryland or North Carolina record does not stay behind a state line.¹

Child welfare agencies and foster or adoptive homes go further. A juvenile adjudication of delinquency based on conduct that would be a felony if committed by an adult also counts as a barrier crime conviction, whether the adjudication happened in Virginia or elsewhere.⁴ That is unusual, because juvenile records are typically sealed and excluded from adult background checks in other settings.

Are There Waivers or Exceptions

For most barrier crimes, no. VDH has no waiver or variance procedure at all for its licensed facilities. If a conviction meets the statutory definition, the facility cannot hire that person, and no agency official can override the result. The single-misdemeanor rule discussed above is automatic rather than discretionary: if the criteria are met, the employer is required to treat the applicant as eligible.

DSS has a written waiver process under § 63.2-1723 for people seeking to work at or volunteer with child welfare agencies, but the Commissioner cannot grant a waiver to anyone disqualified by a barrier crime as defined in § 19.2-392.02.⁵ The waiver only reaches disqualifying convictions that are not barrier crimes. If a barrier crime is the reason, the door is closed.

For child-placing agencies approving foster and adoptive parents, a handful of narrow, offense-specific exceptions exist with long waiting periods and rehabilitation requirements:

Statutory burglary under clause (ii): approval possible if the Governor or another authority has restored the person’s civil rights and 25 years have passed.
Clause (iii) drug distribution: civil rights restoration plus 20 years.
Clause (iv) felony drug possession: 10 years, or 8 years with completion of substance abuse treatment and drug testing.⁶

For child day centers, an employer may hire someone with a single misdemeanor assault conviction under § 18.2-57 after 10 years, if the offense did not happen while the person worked at a child day center and did not involve a minor.⁷

Sealed Records

Virginia’s record-sealing law offers a real path. According to the Virginia State Crime Commission, a sealed offense is not considered a barrier crime under Virginia law.⁸ A conviction sealed through the petition process should not appear on a Virginia criminal history search and should not trigger a barrier crime disqualification under state law.

One catch: a sealed Virginia offense may still be treated as a barrier crime under federal law. The FBI search that runs alongside the state check operates under different rules, and positions tied to federal funding or federal oversight can still surface a sealed conviction. Anyone relying on a sealed record to clear a covered job should get advice from an attorney before applying.

How the Background Check Works

Employers in regulated industries run a fingerprint-based criminal history check through the Virginia State Police before hiring anyone into a covered position. The search queries both the Virginia Criminal History Records Exchange and FBI criminal history files, and the combined fee is $27.00.⁹ The applicant submits a signed request form and fingerprint cards through the State Police.¹⁰

If you have a prior arrest, request certified copies of the final court orders and disposition documents from the clerk of the court that heard the case. Those records fix the exact charge and outcome, and the screening agency needs that specificity to decide whether a conviction actually meets the barrier crime definition or falls just outside it.

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 63.2-1719 – Barrier Crime; Construction
5
Virginia Code Commission. Virginia Code 63.2-1723 – Child Welfare Agencies; Criminal Conviction and Waiver
6
Virginia Department of Social Services. Child Placing Agencies Barrier Crimes
7
Virginia Code Commission. Virginia Code Title 22.1 – Education, Article 5 – Background Checks
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