Category Archives: naturalization

5 Benefits of Having Immigration Counsel at Your In-Person Interview with USCIS

When you receive notice of your in-person interview with U.S. Citizenship & Immigration Services (USCIS), you might be tempted to attend it without counsel to save on legal fees.  Many applicants, however, end up spending more money down the line because they did not have a qualified attorney helping them deal with unexpected problems at the interview.

If you filed the application or petition on your own, you could tell yourself the wait is over and the interview is just a formality before USCIS grants the immigration benefit. If you had counsel helping you with the filing, you might decide her presence at the interview is excessive because your important questions have already been addressed.

But the advantages of having reputable, experienced counsel appear with you at the interview far outweigh the disadvantage of incurring legal fees for representation.

In-person interviews with USCIS are necessary to obtain most immigration benefits, including asylum, permanent residence (green card) and naturalization (U.S. citizenship). The interview usually occurs at the USCIS Field Office with jurisdiction over the applicant’s place of residence.

As of October 2, 2017, under the Trump Administration, USCIS began to phase-in interviews for the following:

• Employment-based adjustment of status/green card applications  (Form I-485, Application to Register Permanent Residence or Adjust Status) filed on or after March 6, 2017, in the EB-1, employment based first preference, EB-2, employment based second preference, and EB-3, employment based third preference.

• Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Previously, except in certain situations such as when a criminal record or unlawful presence existed, applicants in these categories were not scheduled to attend an in-person interview with USCIS for their applications to be adjudicated.

USCIS plans to gradually expand interviews to other immigration benefits. It notes the change is in line with Trump’s Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s  efforts to improve the detection and prevention of fraud and enhance the integrity of the immigration system.

Here are 5 main benefits of having immigration counsel at your in-person interview with USCIS:

1. Provide protection against excessive screening or vetting

The in-person interview is a screening and vetting procedure for persons seeking immigration benefits to reside or stay long-term in the United States. While USCIS officers are trained to be professional, courteous, and respectful of your legal rights, some may turn (or may seem) hostile when there is reason to believe the applicant is committing immigration fraud, is a danger to the community, or is ineligible for or undeserving of the benefit sought.

Interviews with USCIS are not supposed to be adversarial in nature. They are meant to gather complete and accurate information (both favorable and unfavorable) to properly adjudicate the case, not to find a reason to deny the requested benefit.

Nevertheless, due to expansions in immigration enforcement priorities under the Trump Administration, there are now more reports of applicants being arrested and detained by U.S. Immigration & Customs Enforcement (ICE) at their interviews  with USCIS. These cases normally involve beneficiaries attending I-130 interviews who have prior or outstanding removal orders and have remained unlawfully in the country.

Prior to the interview, the attorney can review your criminal record and immigration history to evaluate the risks of interview attendance. While attorneys have no authority to stop ICE from lawfully apprehending or detaining an applicant at the USCIS interview, they may ask critical questions to verify where the applicant will be held and the next steps in the detention and removal process. Unless there is an express agreement, however, the attorney is not obligated to represent you beyond the interview with USCIS.

In less complicated cases — such as where ICE apprehension or detention is unlikely because the only violation is a visa overstay — your having counsel at the interview is still crucial. Attorney appearance encourages the USCIS officer to remain professional and courteous and stick to relevant issues.

2. Clarify unclear questions and complex issues

At the in-person interview, the USCIS officer may ask for any information related to questions on the application forms, your eligibility for the benefit sought, your marital history, your manner of entry into the U.S., your admissibility to the U.S. (such as any arrests, charges or convictions, or misrepresentations made to an immigration official), your educational background, and your past and present employment (including the documents you used to obtain a job in the United States).

When a USCIS officer asks a vague or unclear question, the attorney may request clarification to ensure the applicant understands what is being asked. If the attorney knows the answer is factually or legally incorrect, she may also ask the officer to rephrase the question or point to objective records in the file to show the applicant is mistaken.

3. Help prevent unnecessary delays and complications

USCIS stated the new interview requirement, which became effective on October 2, 2017,  will amount to approximately 17% of the agency’s total workload. Thus, longer processing times and increased delays in all adjudications , especially interview-based applications, are expected.  These days, USCIS is taking one year or more to adjudicate green card and naturalization applications, as opposed to six to nine months in the past.

At the interview, you should strive to present all the necessary information and requested documents to facilitate approval. Otherwise, it may take several weeks or months for USCIS to issue a Request for Evidence or Notice of Intent to Deny, to which you must respond within a specified time frame (e.g. 87 days and 30 days, respectively.)

Your attorney can help you figure out what you need to bring to the interview, based on the instructions in the interview notice and the unique facts of your case. The attorney is also better equipped to evaluate whether a favorable decision or adverse notice is expected, depending on what occurred at the interview, and prepare you for next steps following the interview.

4. Serve as an advocate

Unlike in court hearings before a judge, interviews with USCIS do not involve your attorney asking you direct questions to solicit testimony. The USCIS officer asks the questions and  you provide the answers.

Questions on issues that may seem inappropriate or unimportant to you might be relevant to your eligibility for the immigration benefit and be in line with USCIS policy. Having counsel at the interview helps you determine when it’s better to answer, ask for clarification, or object (for good cause).

Your attorney cannot respond to questions the USCIS officer directs to you. She also may not coach you on how to lie about facts or hide information that is requested. But she may advise you on legal issues or raise objections to inappropriate questions or, as a last resort, ask to speak with a supervisor (particularly if the interview becomes argumentative or antagonistic).

Having an attorney present at the interview helps to protect and advocate your legal rights. If USCIS instructs you to provide a sworn, written statement on controversial points, the attorney can verify that you understand what you are providing and signing.

Counsel can further help you avoid misrepresenting material facts to the USCIS officer and explain unfavorable information to defuse a difficult situation. They advise you on pitfalls and weaknesses in your case that will likely be at issue in the interview. They determine when and how to best present testimony and documentary evidence to highlight positive factors and offset negative factors in your case.

It is rare for interviews to be  video-recorded. Without counsel, it will just be the USCIS officer and you (and possibly your interpreter) in the interview room. The officer will takes notes for the file, but you typically will not have access to them unless you submit a Freedom of Information/Privacy Act Request, which normally takes several months to process. Moreover, in the FOIA response, the agency may redact, or black out, any information protected by one of the nine FOIA exemptions to prevent certain harms, such as an invasion of privacy, or harm to law enforcement investigations.

An attentive attorney at the interview will carefully observe the discussion and take informative notes on questions asked and answers given. If USCIS issues a Notice of Intent to Deny or other adverse notice based on purported discrepancies and inconsistencies at the interview, an attorney may provide a credible explanation on what was said in the interview and how it was conducted. It won’t just be your word against the allegations of the interviewing officer.

5. Add credibility to your claim

Having an attorney present does not mean you have something to hide. On the contrary, many USCIS officers prefer applicants to bring counsel to the interview for it to run more smoothly and effectively.

In addition, because attorneys have a duty of candor to the tribunal, their presence generally adds credibility to your claims.  An attorney cannot knowingly present false information or false documents or perpetuate fraudulent claims without running afoul of the professional responsibility rules.

The attorney can help prepare you for interview by describing what questions to expect and which issues are likely to arise, and how to best address them. They can further prepare and submit a legal memorandum to stave off concerns and persuade the officer to approve your case.

Conclusion: Bring Counsel to the Interview

There are many applicants who attend their interviews without counsel and get their applications or petitions approved. But these cases are usually very well-documented with positive information and no adverse factors to consider. The applicant also has to be very fortunate having a relatively short interview where no problems arose. It is hard to know how exactly your interview will go.

Many things can go wrong at the interview with USCIS, which may lead to severe consequences including denial decisions and even a Notice to Appear in removal proceedings before an Immigration Court.

For example, the USCIS officer may conduct separate interviews of the U.S. citizen (I-130 petitioner) and his foreign national spouse (I-485 applicant) and determine they entered into a sham marriage for immigration purposes. The officer may review the entire immigration history and/or criminal record of a naturalization applicant and find that he is not only ineligible for citizenship, but is subject to removal from the United States.

Even if you prepared and filed the application or petition with USCIS on your own, or with the help of an immigration consultant or online immigration service, you may have counsel enter her appearance at the interview by submitting a Form G-28, Notice of Entry of Appearance as Attorney, to the USCIS officer.  Once the G-28 is accepted, the appearance will be recognized until the matter is concluded (absent a withdrawal of representation).

It’s best to secure counsel for the interview at least two weeks in advance to avoid scheduling conflicts and lack of preparation.

In some cases, the interview goes so well that having counsel seems to be an added expense with no benefit. But more than likely, counsel’s presence at the interview contributes to the successful outcome, even though you might not be able to measure the effects. And when the stakes are high, it’s better to be over-prepared than under-prepared and to err on the side of caution by having counsel at the interview.


This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


Photo by: johnhain

5 Questions to Ask Yourself Before You File for Naturalization (U.S. Citizenship)

Before you file a Form N-400, Application for Naturalization, to obtain U.S. citizenship, there are five key questions to ask  yourself. Your answers will help you determine whether you qualify for naturalization and may become a naturalized U.S. citizen.

QUESTION #1: Were you lawfully admitted to the U.S. as a permanent resident? (Do you meet the LPR Admission requirement?)

With few exceptions (which apply to U.S. nationals and certain members of the U.S. armed forces), you must first be lawfully admitted as a permanent resident before you may file for naturalization when you are 18 or older.

If you were granted a green card or immigrant visa in error, or if you obtained permanent residence by fraud or willful misrepresentation, you do not meet the lawful admission requirement for naturalization.

Fraud or Misrepresentation

In reviewing your naturalization application, USCIS will make sure your permanent resident status was lawfully obtained, instead of merely rely on your having a green card. If USCIS determines you were granted lawful permanent resident (LPR) status by mistake or fraud, it will not only deny your Form N-400, but will likely place you in removal proceedings.

QUESTION #2: Have you continuously resided in the U.S. for at least 3/5 years?(Do you meet the Continuous Residence requirement?)

You must reside continuously in the U.S. for at least 5 years as a permanent resident at the time you file your naturalization application. An exception is if you are a qualified spouse of a U.S. citizen, in which case your continuous residence must be at least 3 years at the time you file for naturalization.

You must also maintain continuous residence from the time you file the Form N-400 up to the time of naturalization (i.e. take the naturalization oath and become a U.S. citizen).

You may file your naturalization application up to 90 days before reaching the 3/5-year continuous residence period. This is known as the 90 day early filing period.

Your LPR status begins when USCIS approves your adjustment application or when you are admitted to the U.S. on an immigrant visa. For certain groups, the start date of becoming an LPR may be earlier than the actual approval of the status (commonly referred to as a “rollback” date). For example, USCIS generally considers an asylee’s date of admission as an LPR to be one year prior to the date the adjustment application was approved.

Breaks in Continuity of Residence

Continuous residence relates to the time you resided lawfully in the U.S. without any single absence long enough to “break” continuity for naturalization. There are two types of absences from the U.S. that interfere with the continuity of residence for purposes of naturalization:

1.  Absence of more than 6 months but less than one year is presumed to break the continuity of residence.

Example: Melinda is absent from the U.S. from September 19, 2013 to June 26, 2014. Her absence of 280 days is presumed to break the continuity of residence because it lasted more than six months. Any time spent in the U.S. prior to September 19, 2013 presumably does not count toward her continuous residence.

She may, however, provide evidence showing she did not disrupt her residence during her stay abroad, such as keeping her job in the U.S. and not obtaining employment while abroad; maintaining a residence in the U.S. to which she retained full access; and  having strong family ties in the U.S.

2. Absence of one year or more (without an approved Form N-470, Application to Preserve Residence for Naturalization Purposes, which only certain persons may file) absolutely breaks the continuity of residence.

Example: Jonas was absent from the United States from December 11, 2014 to January 11, 2016. His absence of 396 days absolutely breaks the continuity of residence because it lasted more than a year. Any time spent in the U.S. prior to December 11, 2014 does not count toward his continuous residence.

Four Years and One Day Rule | Two Days and One Day Rule

If you broke the continuity of residence because you stayed abroad too long, you may not file your naturalization application as early as 90 days before you meet the continuous residence requirement.

Instead, if you are subject to the 5-year continuous residence requirement, you must wait at least 4 years and 1 day after re-entering and continuously residing in the U.S. to file for naturalization. If the 3-year continuous residence requirement applies to you, the wait is 2 years and 1 day.

NOTE: Absences of less than 6 months may also break the continuity of residence depending on the facts surrounding the absence. An example is if you claimed nonresident alien status to qualify for tax exemptions or if you failed to file income tax returns because you consider yourself  a non-resident alien.

You must have the intent to maintain lawful permanent resident status and consider all absences from the U.S. to be fixed, temporary visits abroad. Abandonment of LPR status makes you ineligible for naturalization.

USCIS will consider the entire period from the LPR admission until the present when determining whether you meet the continuous residence requirement.

QUESTION #3: Have you been physically present in the U.S. for at least half the continuous residence period? (Do you meet the Physical Presence requirement?)

You  must have been physically present in the U.S. for at least 30 months of the five years prior to filing your naturalization application (or at least 18 months if the 3-year continuous residence requirement applies).

Physical presence concerns the total number of days you are actually or physically in the U.S. during the period required for naturalization.

You also must have resided for at least three months immediately prior to filing the Form N-400 in the USCIS district or state where you claim to reside.

QUESTION #4: Are you a person of good moral character? (Do you meet the Good Moral Character requirement?)

You must show good moral character (GMC) during the applicable statutory period, i.e. 3/5-year period immediately before you file for naturalization and up to the time of the Oath of Allegiance.

USCIS is not limited to reviewing your conduct only during the statutory period. Your conduct prior to the 3/5-year period may also affect your ability to establish GMC if your present conduct does not reflect a reformation of character or the earlier conduct relates to your present moral character. USCIS will consider the totality of the circumstances and weigh favorable and unfavorable factors, when considering reformation of character, including family ties; absence or presence of other criminal history; education; employment history; other law-abiding behavior (e.g. paying taxes); community involvement; your credibility; compliance with probation; and length of time in the U.S.

If you lie on your Form N-400 application or during the naturalization interview,  and you are caught, USCIS will deny your application for lacking good moral character. If you are granted naturalization and you are later found to have lied during your interview, your citizenship may be revoked through rescission proceedings.

USCIS will consider your criminal history when determining whether you meet the GMC requirement. Committing certain crimes may lead to permanent bars or conditional bars to naturalization.

Permanent Bars to Establishing Good Moral Character

There are certain convictions or criminal offenses that permanently bar you from establishing GMC for naturalization. They include a conviction for murder at any time, and a conviction for an aggravated felony on or after November 29, 1990 (e.g. murder, rape, or sexual abuse of a minor; illicit trafficking in controlled substance; and crime of violence, theft offense and passport/document fraud leading to imprisonment of at least 1 year). They also include involvement in Nazi persecutions, genocide, torture, and particularly severe violations of religious freedom.

Conditional Bars to Establishing Good Moral Character

Other offenses are conditional bars to naturalization. These temporary bars are triggered by acts, offenses, activities, circumstances, or convictions within the statutory period for naturalization, including the period prior to filing and up to the time of the Oath of Allegiance.

Conditional bars include a conviction or admission of one or more Crimes Involving Moral Turpitude (other than political offense), such as theft, forgery, and terroristic threats – except for one petty offense; violation of any law on controlled substances – except for simple possession of 30g or less of marijuana; prostitution offenses; and willful failure or refusal to support dependents, unless extenuating circumstances are shown.

Criminal History May Lead to Denial of N-400 and, In Some Cases, Cause You to be Placed in Removal Proceedings 

The Form N-400 asks several questions about arrests, charges, and convictions. You should report all criminal offenses, including those that have been expunged or sealed or those that occurred before your 18th birthday.  You are required to submit the certified court disposition and, in many cases, USCIS will request the police report and other related documents.

If you have committed certain serious crimes that make you removable from the U.S., USCIS will not only deny your naturalization application but may also place you in removal proceedings before the Immigration Court.  Be sure to read Immigration Consequences of Criminal Offenses: Myths & Facts. 

QUESTION #5: Can you pass the English and civics tests? (Do you meet the English or Civics requirements?)

You must be able to read, write and speak basic English. During the naturalization interview, the USCIS officer will instruct you to write a certain phrase in English and will give you an English phrase to read, e.g. “Only U.S. citizens may vote.”

You also have to know the fundamentals of U.S. history and the form and principles of the U.S. government. The USCIS officer will have 10 civics questions to ask, and you must answer 6 correctly. You need to study for the civics test; you have one opportunity to retake it if you fail it the first time.

Certain applicants, because of age and time as a permanent resident, or because of a disability, have different English and civics requirements. Those over 50 years old and have lived in the U.S. for at least 20 years as a permanent resident, or those over 55 years old and have lived in the United States for at least 15 years as a permanent resident, or those with a disability that prevents them from fulfilling this requirement and will be filing a “Medical Certification for Disability Exceptions” (Form N-648) qualify for an exemption.

Consult an experienced immigration attorney

Sometimes the answers to these five key questions are clear. Sometimes they are not. Consult an immigration attorney, who fully understands the naturalization requirements, to verify your eligibility for naturalization before you file a Form N-400 application with USCIS. The attorney can also help you assess and maximize your likelihood of becoming a naturalized U.S. citizen.

Getting counsel to prepare and file the naturalization application, advise you on what to expect at the interview, and attend the interview with you typically makes a positive difference.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.


Photo by: Josh Hallett

Saying Thanks on Thanksgiving Day

In the United States, we celebrate Thanksgiving today (November 26). In the spirit of this holiday, I’d like to express my gratitude for your connecting with me as a current client, a prospective client, a past client, a referral source, or a friend of Dyan Williams Law PLLC, or a reader of our blog, The Legal Immigrant.

No one wants to talk to a lawyer about their problems. But eventually, most people end up needing to consult with a lawyer.

Foreign nationals who seek to immigrate to the U.S., study or work temporarily in the U.S., or become naturalized U.S. citizens usually need a trusted immigration lawyer to help them figure out the process. A full-on Do-It-Yourself (DIY) approach often gets you into trouble when it comes to navigating the U.S. immigration system. The immigration process is governed by complex laws, changes constantly, and is riddled with confusion and uncertainty.

When prospects call me on the telephone, send me an email, or submit an online inquiry to discuss their case, I strive to make our communication not only comfortable, but also surprisingly pleasant. I speak in layman’s terms they can understand, instead of use legal jargon that is meaningless to them. I ask clarifying questions to understand where they want to go with their case. I provide insightful information to steer them in the right direction.

To give prospects a sense of what it’s like to work with me, I offer a complimentary case evaluation by telephone (and sometimes by email). This involves addressing general concerns and questions about their case. I also write articles and post them on my blog, The Legal Immigrant; participate in a legal Q&A forum that deals with tough immigration issues; and speak to small and large groups on hot immigration topics.

When offering specific and detailed guidance to potential clients, I charge a consultation fee. Why? Two reasons: First, I want to avoid tire kickers who have no intention of working with me, but simply want free advice. Second, I offer tremendous value in the consultation that is worth much more than the fee. When a person is willing to pay the consultation fee, this shows there is some understanding of the value I bring. The consultation is typically the first step to creating a trust-based relationship that makes a huge difference to my clients and their families.

Your contacting me about your case, hiring me as your attorney, or referring others to me is key to having a successful law firm that serves the community well. I appreciate your support and our connection, not just on Thanksgiving Day, but every day.

May you and your family and friends experience joy and gratitude on Thanksgiving Day and beyond.


Dyan Williams

Founder & Principal Attorney
(612) 225-9900

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Photo by: woodleywonderworks, universal thank you note

The Joys and Benefits of Becoming a U.S. Citizen

After many years of living in the United States – first an F-1 student, then an H-1B professional worker, and next a lawful permanent resident – I became a naturalized U.S. citizen on Monday, September 28, 2015.

As an immigration attorney, I have helped many foreign nationals attain U.S. citizenship for more than a decade. I found my firsthand experience of becoming a U.S. citizen to be quite momentous.

My naturalization oath ceremony was held at the Earle Brown Heritage Center in Brooklyn Center, Minnesota. Along with more than 400 other persons from all around the world, I took the Oath of Allegiance to the United States of America – pledging to support and defend the U.S. Constitution and renouncing allegiance to my former country (Jamaica).

The Honorable Tony N. Leung (U.S. District Magistrate Judge) administered the oath, spoke about immigrating from Hong Kong to the U.S. with his family when he was a child, and encouraged us to treasure our cultural past while embracing our future as U.S. citizens.

We received our certificates of naturalization at the end of the ceremony. I happily display mine in the photos of me with my husband and daughter, and with Judge Leung.

Becoming a U.S. citizen is a special milestone for immigrants and is the pinnacle of an immigrant’s long journey. It brings unique benefits, such as the ability to:

  • file immigrant petitions for more family members (including parents, siblings and married children)
  • gain automatic citizenship for your lawful permanent resident children under age 18
  • receive full protection from deportation
  • obtain a U.S. passport
  • travel more easily to foreign countries
  • travel outside the U.S. for as long as you want with no barriers to re-entry
  • obtain federal jobs and government benefits that are available only to U.S. citizens
  • run for public office
  • vote in federal elections

The right to vote is perhaps the most well-known and appreciated benefit of becoming a U.S. citizen. It often drives the decision of many immigrants, including me, to apply for citizenship.

Before my naturalization oath ceremony began, members of the League of Women Voters presented on the importance of voter registration and voting, and gave instructions on filling out the registration form, which were part of our ceremony packet. They stood at the exits to collect our voter registration forms at the end of the ceremony – after we completed the oath, received our naturalization certificates, and officially became U.S. citizens.

No doubt, immigration is a hot topic among the 2016 presidential candidates and a divisive issue in the United States. This ever-growing, complex problem has no easy fix. A candidate’s position on immigration and plans for immigration reform will likely be a deciding factor for most New Americans who choose to vote.


Immigration Consequences of Criminal Offenses: Myths & Facts

When a person is charged with a crime, he and his criminal defense attorney are often most concerned with minimizing the penalties. The defendant might give up his right to a trial and enter a guilty plea or no-contest plea to a less serious charge, in exchange for the dismissal of other charges or a reduced sentence. But the U.S. immigration consequences can be far more serious than the jail time, fine, probation or other more direct consequences of the conviction.

Criminal convictions can lead to a non-citizen being deported from the United States, denied entry (or re-entry) into the United States, and stripped of immigration benefits, including eligibility to become a permanent resident or a naturalized citizen. The immigration consequences continue long after the person has already served his sentence.

If you are a foreign national who wishes to visit, immigrate to, or stay in the United States, you need to know the myths surrounding criminal offenses and their immigration consequences. The most common include:

Myth #1:  The “dismissal” of my criminal case, after I have met certain conditions, means I have no “conviction” under U.S. immigration law. 

Fact:  A conviction could still exist under federal immigration law even when a dismissal of the case means there is no conviction under state law.

You may qualify for a pre-trial intervention, first offender, or diversion program, in which counseling rather than punishment is emphasized. Some states and programs do not require defendants to enter a guilty plea or no-contest plea to qualify for the program. Prior to entering a plea, the person agrees to complete probation, anger management, group therapy, substance abuse treatment or other type of program. If the person successfully completes the program, the charges are dropped or the case is dismissed.

But when you must admit guilt or you are found guilty before the pre-trial intervention, first offender, or diversion program is imposed, this amounts to a conviction under federal immigration law. In this situation, a dismissal of the case — after you complete the program — does not wipe the slate clean for immigration purposes.

Immigration law defines “conviction” as a formal judgment of guilt or, if adjudication of guilt has been withheld, where (i) a judge or jury has found the person guilty or the person has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or restraint on the person’s liberty to be imposed.

“Restraint on liberty” includes imprisonment, a fine or restitution, and probation. It also includes minimal community-based sanctions such as work-release programs, rehabilitation programs, house arrest, revocation or suspension of a driver’s license, and community service. Whether a jail sentence is actually served or suspended is irrelevant.

Unless a criminal case is outright dismissed, is stricken, or is not prosecuted — without any admission of guilt or penalty imposed — a criminal conviction exists under immigration law.

Myth #2:  An expungement (or sealing) of my criminal record means it is erased as if it never existed. 

Fact:  Generally, an expungement seals or deletes the criminal record in the local court and (perhaps) the state police’s databases.  Each state uses its own approach and procedures.  In most cases, a full expungement treats the offense as if it never occurred. For immigration purposes, however, an expungement does not erase the conviction.

Fingerprints taken when you were arrested remain in the FBI or federal databases. Immigration officials may still see or request expunged records for certain purposes.

When you file for a nonimmigrant visa, a visa waiver (under ESTA), permanent residence or U.S. citizenship, you are asked about arrests, charges and convictions. An expunged or sealed record does not make the arrest, charge or conviction go away for immigration purposes.

As part of a Form I-485 application for adjustment to permanent residence, Form I-90 application for replacement of green card, or Form N-400 application for naturalization, you must provide your fingerprints at a biometrics appointment.  A background check, including review of criminal records in the FBI database, will be conducted before you receive a decision on your application.

Your criminal record will normally turn up in the background check. If an immigration officer sees that you have a record, and you stated that you had no arrests, charges or convictions, he may deny your application based on fraud or willful misrepresentation of material fact to gain immigration benefits.

Immigration officials can sometimes obtain expunged records from the court. But you have the burden to produce court-certified records when you apply for certain immigration benefits, such as permanent residence, a new green card, or naturalization. Therefore, it’s best that you obtain the court-certified records before you seek an expungement. Otherwise, you might need to get the record unsealed to allow continued processing of your application.

Myth #3:  A relatively minor offense, such as a misdemeanor or a conviction resulting in a sentence under 1 year, will not cause any immigration problems.

Fact: A conviction does not necessarily disqualify a person from obtaining a visa, permanent residence, naturalization, or other immigration benefits. The  only situation in which a single conviction is an automatic and permanent bar to entering the U.S. is when the conviction is for an aggravated felony, and you have been previously removed due to the conviction.

In general, misdemeanor offenses carry less serious consequences than felony offenses. A sentence of less than one year can save the person from being deported without a viable defense. But the nature of the offense, type of conviction, and the maximum potential penalty are additional factors to consider.

Even non-violent, relatively minor misdemeanor offenses under state law can be classified as a felony or even an aggravated felony under federal immigration law. The Immigration and Nationality Act does not distinguish between felony and misdemeanor crimes. Rather, crimes are categorized by the type of conduct involved.

Aggravated Felony

A person convicted of an aggravated felony is ineligible for asylum, cancellation of removal, certain waivers of inadmissibility such as the 212(h) waiver, and voluntary departure. Section 101(a)(43) of the Immigration and Nationality Act provides a list of offenses that are deemed aggravated felonies. They include:

  • murder
  • rape
  • sexual abuse of a minor (including statutory rape)
  • controlled substance trafficking
  • illicit trafficking in firearms or destructive devices
  • money laundering of more than $10,000
  • fraud or tax evasion involving a loss that exceeds $10,000
  • a crime of violence with a sentence of at least one year
  • a theft offense or burglary offense with a sentence of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • obstruction of justice, perjury, or bribery of a witness, if the term of imprisonment was at least one year

While a reduced sentence under 1 year might help you avoid an aggravated felony charge, this only applies to a narrow group of convictions (e.g. theft and violent crimes).  There are various types of convictions that present immigration problems, no matter the sentence.

An aggravated felony is not the only crime that carries serious immigration consequences. Controlled substance violations, firearms offenses,  domestic violence, stalking, violation of protective orders, child endangerment, and child abuse are especially problematic.

Crime Involving Moral Turpitude

A Crime Involving Moral Turpitude (CIMT) often causes major immigration problems as well. A CIMT involves engaging in morally reprehensible and intrinsically wrong conduct with willful, reckless, or malicious intent.

Examples are crimes against a person (aggravated battery, aggravated assault with a deadly weapon, statutory rape); crimes against property (shoplifting, theft, fraud, forgery, robbery); sexual and family crimes (e.g. child abuse, aggravated domestic assault); and crimes against the government (e.g. bribery, counterfeiting, willful tax evasion).

A noncitizen is inadmissible to the U.S. if he is convicted of – or admits to committing – one CIMT (other than a political offense), unless he qualifies for:

(1) the petty offense exception, where the person committed only one CIMT ever, the CIMT has a potential sentence of a year or less, and a sentence of six months or less was imposed ; OR

(2) the youthful offender exception, where the person committed a single CIMT while under age 18, and at least five years have passed since the conviction and release from jail.

A noncitizen is deportable if convicted of a CIMT (other than a political offense) committed within five years after the date of his admission to the U.S., and for which a sentence of one year or longer may be imposed. The maximum sentence possible is the determining factor. For example, if the CIMT occurred within five years of the person becoming a lawful permanent resident, he is still removable from the U.S. if he could have been sentenced for 365 days or more. It doesn’t matter whether the actual sentence was less than 365 days or was suspended upon completion of probation.

A noncitizen is deportable for two or more convictions of crimes involving moral turpitude that occur anytime after admission to the U.S. on any visa, or after adjustment of status. The only two exceptions are if the offenses are “purely political” or arose in a “single scheme of criminal misconduct” (i.e. the very same incident).

To be admitted to the U.S. as a permanent resident or to prevent removal from the U.S. as a result of a CIMT, the person must qualify for certain relief, such as a 212(h) waiver in conjunction with adjustment to lawful permanent resident status.

Whether the person has multiple criminal convictions also plays a role. A noncitizen is inadmissible if convicted of two or more crimes (other than purely political offenses) – regardless of whether the conviction arose from a single trial or whether the offenses arose from a single scheme of misconduct, and regardless of whether the crimes involved moral turpitude –  for an aggregate confinement totaling five years or more.

In addition, any criminal record can make it much harder for you receive certain immigration benefits. For example, a disorderly conduct conviction or multiple DUI offenses are not automatic or conditional bars to naturalization. But they can make it harder for you to establish good moral character and easier for USCIS to deny your naturalization application – especially if they occurred within the statutory period (generally 3 to 5 years before you file your Form N-400.)

Myth #4: My criminal record will not matter if I have been a permanent resident for many years. 

Unconditional permanent resident status does not expire even when your 10-year green card is no longer valid.  But it can be revoked due to certain criminal convictions. As a permanent resident, you may also be denied-re-entry to the U.S. or be placed in removal proceedings on criminal-related grounds.

Although lawful permanent residents have more rights and privileges than undocumented immigrants and foreign nationals in non-immigrant status, only U.S. citizens are fully protected from the immigration consequences of criminal convictions.

Myth #5: Foreign convictions do not count for immigration purposes.

U.S. immigration authorities consider a foreign conviction to be a “conviction” in the immigration context if the conviction resulted from an offense deemed to be criminal by U.S. standards. Federal U.S. standards on sentencing are also used to determine whether the foreign conviction is a felony or a misdemeanor, regardless of the sentence imposed in the foreign jurisdiction. The U.S. also does not recognize foreign pardons.

The Form I-485 application specifically asks you to disclose whether you have been arrested, cited, charged, convicted or sentenced for crimes outside the U.S.. In the naturalization context, you are also expected to list criminal offenses that occurred outside the U.S.

Learn about the immigration consequences of a criminal charge or conviction before you enter a plea, leave the U.S., or apply for immigration benefits

In 2010, the U.S. Supreme Court ruled  in Padilla v. Kentucky that the 6th Amendment right to counsel requires criminal defense attorneys to provide advice about the immigration consequences of a conviction to their noncitizen clients.  The immigration consequences depend on the elements of the crime, the nature of the offense, the potential sentence, the actual sentence imposed, and whether the person has other convictions.

Deportation, denial of entry to the U.S., and separation from families often have far more lasting effects than the sentence imposed.  Certain criminal convictions lead you into removal proceedings after you complete your jail sentence, or when you apply for a green card or for U.S. citizenship. You can also be denied re-entry to the U.S. as a permanent resident or valid visa holder on crime-related grounds.

You need to know how a conviction or sentence affects your immigration status before you enter a guilty plea, leave the U.S., or apply for immigration benefits including naturalization. Make sure to seek advice from an attorney who is experienced in the intersection between the two complex areas of immigration law and criminal law.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.



Photo by: Jeffrey