Implications for Immigrants

Going through the U.S. immigration process is complex. With rules to follow, paperwork to fill out, getting a permanent residency (green card) can be lengthy. You wouldn't want to do anything to jeopardize your chances of changing your immigration status. If you are arrested or charged with a crime, however, it could put your visa application and your immigration status at risk.

Are there crimes that can halt your immigration process? Could an arrest lead to deportation if you already have a green card? If you're a non-U.S. citizen in Pennsylvania whose residency status is under threat by involvement with the criminal justice system, you need a defense attorney who understands the implications of a criminal offense on your immigration status.

What Happens to Your Visa Process When You're Arrested?

When you're in the process of obtaining your green card, and you get arrested, the consequences could interfere with becoming a permanent resident. You don't have to be convicted of a crime to face possible deportation, either.

Immigration hold

If you're an immigrant and you're detained by local law enforcement, the authorities detaining you may place you on an “immigration hold.” Instead of releasing you after an arrest, the police will put you in federal custody, as requested by Immigration and Customs Enforcement (ICE). The local police will hold you for an additional 48 hours, so immigration officials can detain and transfer you to federal custody for an immigration violation.

Crimes that Will Jeopardize Your Immigration Process

To get a visa, green card, or another form of entry into the U.S., applicants must be “admissible.” If you're found inadmissible for some reason, you will be denied entry into the U.S. U.S. immigration authorities have several grounds for what constitutes inadmissibility, and not every reason has to do with criminal history. Communicable diseases, lack of required vaccinations, and whether you'll become dependent on government welfare programs are also reasons you could be inadmissible. Crimes tend to be a primary reason immigrants cannot enter the U.S., however.

You can still enter the U.S. with some crimes, but with others, you cannot.

Inadmissible crimes

The Immigration and Nationality Act (INA) lists crimes considered inadmissible. Some of these crimes include:

  • Conviction of a crime involving moral turpitude (a reckless crime with evil intent that is contrary to the rules of morality of a society)
  • Conviction of crime violating either U.S. or foreign law regarding controlled substance
  • Conviction of two or more offenses
  • Conviction of controlled substance trafficking; is the spouse, son, or daughter of a foreign national convicted of controlled substance trafficking and knew about the illicit activity or gained financial benefit from it
  • Coming to the U.S. to engage in prostitution or has engaged in prostitution within 10 years of visa application date
  • Human trafficking offenses or aiding, abetting, assisting, conspiring or colluding with a known trafficker
  • Foreign government officials who committed severe violations of religious freedom
  • Money laundering

This above list includes crimes, but other violations can make a foreign national inadmissible. Involvement in terrorism, espionage, sabotage, Nazi persecution, genocide, participation in a totalitarian party, recruitment, and use of child soldiers are also inadmissible crimes.

For some categories of inadmissibility, you can get a waiver or exception. Other categories, like drug trafficking, terrorism, genocide, and likelihood of becoming dependent on public assistance do not have a waiver available.

Will a Misdemeanor Affect my Green Card Renewal?

As a foreign national, any time you commit a crime, there's a possibility that it will affect your immigration status or green card renewal process. You must renew your green card every ten years in order to stay as a permanent resident in the U.S. When you go through the renewal process, you'll have to fill out Form I-90 for the United States Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS). USCIS will take your biometric information (fingerprints) and run them with the Federal Bureau of Investigation (FBI). If the FBI finds your criminal record, it's possible USCIS could deny you another green card.

The INA lists certain crimes that would make you deportable, and most of these crimes are felonies.

Examples of felony crimes that make a green card holder deportable:

  • A drug crime
  • Domestic violence
  • Aggravated felony
  • Firearms offense
  • Sex crime
  • Crime of moral turpitude within five years of receiving green card

The list of crimes that can make you deportable doesn't mention misdemeanors. A misdemeanor under U.S. immigration law is a 1) crime that is punishable by one year or less in prison, or 2) punishable by more than one year's imprisonment but defined by the state as a misdemeanor and the sentence was actually less than one year. But a misdemeanor crime in your state could be an aggravated felony or more serious crime for the purposes of immigration.

The three most common misdemeanor charges that could interfere with your green card renewal are:

  • Moral turpitude crimes: One misdemeanor crime of moral turpitude isn't enough for DHS to remove you. Two misdemeanor crimes that occurred at separate incidents is grounds for DHS to start removal proceedings.
  • Violent crimes: Any crime of violence, whether misdemeanor or felony in your state, is an aggravated felony for immigration purposes.
  • Drug violations: Any crime involving controlled substances, including drug paraphernalia, is grounds for removal proceedings. The only exception is the possession of fewer than 30 grams of marijuana. Even if your state classifies your drug crime as a misdemeanor, the federal government can use it as grounds for removal. The marijuana exception is for removal but not admissibility. If you're a green card holder and you leave the U.S. and try to reenter with any amount of marijuana, you won't be able to reenter.

USCIS and Your Criminal Record

During your interview for your green card, USCIS will want to know about your criminal record either abroad or in the U.S.

Can you get a visa if you've been arrested?

An arrest alone may not prevent you from getting a visa to the U.S. If your arrest resulted in a conviction, however, you might be inadmissible as a result (see above). You'll have to provide a police certificate six months ahead of your visa interview with the U.S. Embassy.

If your conviction was in the U.S., you must obtain a court record from the court that tried you. If you were arrested but not convicted, you must submit the documents pertaining to your arrest.

Can USCIS see expunged records?

USCIS can still see expunged or sealed records. Expungement may remove your crime for other individuals or entities (such as employers or landlords), but USCIS can still access expunged criminal records.

An expunged or sealed criminal record effectively erases your crimes from the criminal justice system. In Pennsylvania, you can request an expungement of your criminal record by submitting a petition and order, along with a PA State Police background check.

What Happens if You Lie About Your Criminal History on Immigration Forms?

If you provide false information on your immigration forms, it is fraud against the U.S. government. While the U.S. can't indict or prosecute you for federal fraud, it can indict a U.S. citizen who helped you lie on your forms in order to gain entry. Giving false information or concealing information could lead to a denial of your request for a visa.

Application forms for U.S. visas will ask about your past crimes, and you should always provide a truthful account of your criminal history. Immigration officers have access to information pertaining to arrests and criminal convictions—most applications require fingerprinting so they can look up your criminal record. Attempting to hide your past criminal activity would, therefore, be pointless. While it's true that your visa could be denied based on your criminal history, it's still advisable not to lie about it in your application because if you do, you're dealing with two problems instead of one.

Will Drug Charges Affect Your Immigration Status?

Drug use and drug abuse charges can prevent you from entering the U.S. on a visa and put your immigration status in jeopardy if you're already a green card holder. Being a known drug addict or abuser is grounds for inadmissibility, meaning you won't be allowed to enter the U.S. The exception to this rule is if you're a recovering drug addict in remission. Recovering addicts with Class A medical conditions are not admissible, whereas those with a Class B condition are admissible. The U.S. government considers you in full remission and thus eligible for a visa or green card after one year of refraining from engaging in drug abuse or related behaviors. You must prove your sobriety with documented evidence, such as a stay in a rehabilitation facility.

If you're already a permanent resident of the U.S., a drug charge could be grounds for deportation. The following drug-related offenses could make you deportable:

  • Conviction for an offense related to abuse of controlled substances (with the exception of possession of less than 30 grams of marijuana)
  • History as a drug abuser or addict before entering the U.S.
  • Illicit trafficking in a controlled substance, which is an aggravated felony

Can a Juvenile Offense Affect Your Immigration Status?

If you committed a minor offense as juvenile several years ago, then it shouldn't affect your immigration status. USCIS looks at juvenile offenses, but won't necessarily deny a green card to someone with a juvenile record; it depends on the severity of the offense. When you're convicted of a crime as an adult, you can have your record expunged, but USCIS will still see it.

Juvenile offenses that don't result in conviction don't appear on a criminal record, so USCIS can't see it. Furthermore, if a juvenile crime is serious enough that you were charged and convicted as an adult, you can have their juvenile offense sealed if you haven't committed any other crimes. USCIS cannot see sealed juvenile offenses. USCIS will also not consider a juvenile conviction if five years have passed and you haven't committed any further crimes.

Will an Arrest Affect Your Student Visa?

As a foreign student studying in the U.S., an arrest can complicate your immigration status. The possible implications include:

  • If you commit a crime in the U.S., you will face the same punishments as a U.S. citizen, including jail, a fine, or prison time.
  • You can't leave the U.S. until your case is over. You could end up spending significantly more time in the U.S. and be unable to return to your home country as soon as you planned.
  • You could face suspension or expulsion from the college or university hosting you in the U.S. If your arrest doesn't lead to a conviction, your host school may still take disciplinary action against you.
  • If USCIS learns that you violated the terms of your immigration status, they could start removal proceedings for you and your family. See above for the list of deportable crimes.
  • If you receive a DUI (Driving Under the Influence) while on a student visa in the U.S., the U.S. consulate in your home country can revoke your visa.
  • The consulate can't revoke visas for other violations; the only exception is a DUI.
  • You may have difficulty returning to the U.S. in the future as your arrest could later make you inadmissible, even if you didn't commit a deportable crime during your stay in the U.S.

A Pennsylvania Defense Attorney

When a crime puts your immigration status at risk, you need a defense attorney who understands your situation. Joseph D. Lento of Lento Law Firm has years of experience handling criminal defense in Pennsylvania and can help you reach a more favorable outcome in your case. Call today at 888-535-3686 to ask about how a crime in Pennsylvania can affect your immigration status.

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Attorney Joseph D. Lento has more than a decade of experience successfully resolving clients' criminal charges in Philadelphia and the Pennsylvania counties. If you are having any uncertainties about what the future may hold for you or a loved one, contact the Lento Law Firm today! Criminal defense attorney Joseph D. Lento will go above and beyond the needs of any client, and will fight until the final bell rings.

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