As many know, a criminal record could have potential negative consequences on immigration applications. However, many do not know that the United States Citizenship and Immigration Services (USCIS) looks beyond arrests and charges when evaluating whether a foreign national should receive immigration benefits. For example, regardless of whether there was an expungement, USCIS looks at the underlying alleged actions and crime. In other words, it is possible to have an expungement or a sentence suspended, but USCIS can possibly still approve OR reject immigration benefits based on the underlying crime alleged and the circumstances surrounding it.
To determine whether a criminal record will have an effect on an immigration application is a very detailed and fact-specific analysis. However, not all crimes lead to immigration problems. There are ways to prove that the crime is not a significant factor in the immigrant application. It depends on the classification of the crime in the eyes of USCIS under I.N.A. Sec. 212(a). Here are some criminal record items that people overlook:
1. Violation of Protective Order: This is a deportable offense. For example, even if you and your girlfriend or wife were able to resolve any conflicts, a violation of a protection order is a very serious crime that has harsh immigration consequences. And, unfortunately, an expungement is not sufficient to "cure" the violation for immigration purposes.
2. DUI/DWI (Driving Under the Influence): The immigration consequences of a DUI is highly dependent on the facts. Typically, one DUI without aggravating factors does not have serious immigration consequences. However, multiple DUI's or a DUI coupled with issues such as "child endangerment" can lead to red flags.
3. "Moral Turpitude" Crimes: There is a USCIS classification of crimes known as crimes involving "moral turpitude." For these types of crimes, USCIS does NOT distinguish between misdemeanor and felony charges. However, there are exceptions for petty offenses and some juvenile offenses.
4. Arrested, But Case Dismissed: If a case is dismissed, there is still more to the analysis. Typically, a dismissal means that the the evidence against you was not sufficient. However, in an interview, USCIS might still ask you questions regarding the arrest and any guilty pleas, which can have immigration consequences.
If you have a criminal record in the United States or abroad, please consider working with an immigration attorney ASAP to determine the consequences of the crime on an application for a nonimmigrant visa, green card, or citizenship. That being said, it is critical to be truthful about your background on any application. First, being truthful is always the best route to go. Second, if USCIS finds out that the applicant purposefully lied on an application, there are even more serious consequences.
In brief, even with a criminal record, you can still be eligible for immigration benefits, but it depends. It is important to remember that a charge or arrest is not the "only" thing USCIS looks for. Therefore, make sure to understand all your options and how your criminal background may affect you.
ImmigraTrust Law attorneys can help answer your immigration questions regarding criminal records and more.
Please contact us today!
--Najmeh Mahmoudjafari, J.D.
Najmeh is the Founder and Lead Immigration Attorney at ImmigraTrust Law, an immigration law practice in Orange County, California, representing individual and corporate clients in all 50 U.S. States and internationally. Najmeh can be reached at Najmeh@ImmigraTrust.com.
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