When applying for residency or citizenship, one of the most concerning hurdles many applicants face is the potential impact of a criminal record. The Herhusky Law Office, PLLC in Raleigh, North Carolina, is here to help understand how criminal convictions affect these applications.
Whether you're seeking permanent residency or aiming for naturalization, the complications of criminal history must be carefully addressed.
Types of Criminal Convictions That Affect Immigration Status
When assessing an applicant's criminal background, U.S. Citizenship and Immigration Services (USCIS) and other immigration bodies distinguish between different types of offenses.
While some convictions lead to automatic inadmissibility or deportability, others might have less severe consequences.
Crimes involving moral turpitude (CIMT): Crimes that fall under this category involve acts that violate societal moral standards, such as fraud, theft, or violent offenses. These can make an applicant inadmissible.
Aggravated felonies: This broad category includes serious crimes like murder, drug trafficking, or sexual abuse. An aggravated felony can lead to immediate deportation and a lifetime ban on future applications.
Controlled substance offenses: Convictions related to drug offenses often create significant barriers. Even minor drug-related crimes can result in inadmissibility.
Multiple convictions: Having two or more convictions with a total sentence of five years or more may lead to deportation or rejection of your application.
It's important to note that the specific outcome depends on factors such as the nature of the crime, the length of time since the conviction, and whether it was a first offense.
Effect of Criminal Records on Permanent Residency
Criminal history can profoundly affect someone's ability to obtain a green card, but not all criminal convictions are equal under immigration law. USCIS generally considers the following factors when evaluating green card applications:
Inadmissibility grounds: Some criminal offenses automatically bar applicants from being admissible to the U.S. This could prevent someone from obtaining a green card unless they qualify for a waiver.
Waivers for certain crimes: In some cases, individuals may apply for a waiver that allows them to proceed with their green card application despite a criminal conviction. These waivers require proving factors like hardship to family members or the passage of time since the crime.
Time since the conviction: While not discussed frequently, the time elapsed since the criminal act occurred can play a significant role. For some offenses, rehabilitation or evidence of good moral character over an extended period can be considered.
Some offenses may disqualify applicants, while others might only delay the process. Consulting with an experienced attorney is critical to overcome these challenges.
Impact on Citizenship Applications
Applying for U.S. citizenship (naturalization) requires applicants to meet stringent moral character requirements, which can be complicated by a criminal record.
USCIS typically reviews an applicant's criminal history during the five-year period (or three years for certain applicants) before the application, but past convictions, even outside this period, can still affect the outcome.
Good moral character requirement: Applicants must demonstrate good moral character during the statutory period before filing for naturalization. Certain crimes may disqualify someone from proving good moral character, including crimes of moral turpitude, aggravated felonies, or multiple convictions.
Post-conviction rehabilitation: While some applicants assume that a long-past conviction is no longer relevant, USCIS may still take older convictions into account, especially if the crime is severe. Applicants who have shown substantial rehabilitation, such as community involvement or continuous employment, may have a better chance of success.
Additionally, applicants should be aware that if USCIS discovers a criminal record during a citizenship application, it may trigger deportation proceedings, particularly if the offense falls under deportable crimes.
Attorneys often emphasize the importance of preparing the application carefully to avoid negative outcomes.
Cases of Expunged and Sealed Records
Many people believe that if their criminal record has been expunged or sealed, it won't affect their immigration status. This is a common misconception, as USCIS often requires disclosure of all arrests and convictions, even if the record has been expunged or sealed under state law.
Expunged convictions: In proceedings for immigrating, an expunged conviction is typically still considered a conviction for the purposes of immigrating. Therefore, even though a state may have removed the conviction from public records, it may still affect your application for residency or citizenship.
Sealed records: Similarly, sealing a record doesn’t necessarily shield it from authorities. An attorney can advise whether sealed records need to be disclosed and how they’ll be viewed in light of the application.
Understanding these nuances is crucial. Individuals with expunged or sealed records should be cautious about assuming these actions will protect their immigration applications.
Consequences of Lesser-Known Offenses
Many applicants are unaware of how certain lesser-known criminal offenses can affect their immigration status. Here are a few offenses that are often overlooked but can still have serious implications:
Misdemeanor offenses: Although misdemeanors are generally considered minor crimes, certain misdemeanors like domestic violence or firearm-related crimes can have severe consequences. Even traffic-related offenses, if they involve DUI, can complicate the process.
Juvenile offenses: Some applicants assume that juvenile offenses are irrelevant to their immigration applications. However, USCIS may still consider juvenile convictions when evaluating moral character, depending on the severity and nature of the offense.
Deferred prosecutions and plea bargains: Accepting a plea deal or enrolling in a diversion program may still result in consequences. It's vital to understand how these agreements are viewed under immigration law, as they may still be considered a conviction for the purposes of immigrating.
The Role of Pardons and Post-Conviction Relief
Some individuals seek post-conviction relief through state-issued pardons, assuming that this will resolve any potential issues. However, the impact of a pardon is often misunderstood.
State pardons: While a state pardon may restore certain rights, it doesn’t always erase the consequences of a conviction. USCIS generally doesn’t recognize pardons for aggravated felonies or other serious crimes. However, for minor offenses, a pardon may help alleviate barriers.
Vacated convictions: In some cases, an individual may have their conviction vacated, which removes it from their criminal record. If a conviction is vacated for reasons related to legal errors in the original trial, it may be excluded from immigration considerations. However, vacating just for the purposes of immigrating typically isn’t allowed.
Why Attorneys Are Essential
For applicants with criminal records, the process of immigrating can be extremely complicated. Every criminal case is different, and not all convictions automatically disqualify someone from obtaining residency or citizenship. However, the path to overcoming these challenges requires a thorough understanding of both criminal and immigration law. Here’s how attorneys help applicants.
Assess the impact of criminal records: Attorneys review an individual's criminal history to determine how it will affect their immigration application and advise on the right course of action.
Apply for waivers or relief: In certain cases, individuals may be eligible for waivers or other forms of post-conviction relief that could improve their chances of success.
Handle complicated legal procedures: With the stakes being so high, working through the intricacies of the immigration process with professionals prevents applicants from being blindsided by potential complications.
Seek Legal Assistance Today
With the right legal guidance, individuals can often overcome these obstacles and successfully apply for a green card or citizenship. We’re here to offer legal support throughout the Raleigh Area, including Durham, Greensboro, Fayetteville, Charlotte, Wilson Wilmington, greater North Carolina, and beyond. Call the Herhusky Law Office, PLLC today to get started.
