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Have you done something stupid when you were younger? All of us have – but if you're seeking admission to the United States, and that bad choice involved any brush with law enforcement, that mistake long ago could have a profound impact on your and your family's future in the United States.
Did you do the crime, and how much time?
After 23 years of consular work, adjudicating visas and managing huge visa operations, the process for applicants with criminal histories was typically the same. First, is it a "hard ineligibility," meaning criminal activity that is designated in the Immigration and Nationality Act as a specific violation? Some of these were easy to understand, like narcotics violations. Others fall into "Crimes of Moral Turpitude," an archaic term that usually means a crime that harms another human being – like murder, as opposed to tax dodging. Second, was it serious enough to trigger an immigration penalty? And third, did the person admit to or was found guilty of the crime?
This is the process that most applicants are used to, and they know to bring their court documentation to show guilt or innocence (or later expungement of the record) as well as the sentence.
Any brush with the law spells danger
Last year, everything changed. The laws are the same, but new guidance from the State Department tells consular officers to put every interaction with law enforcement under a microscope. Now it doesn't matter what the charge was, whether you got a slap on the wrist, or even if you were found not guilty. Since the laws haven't changed, applicants still aren't found permanently ineligible, they're typically refused under INA 214(b). This can be confusing, since 214(b) is typically used to say that the applicant hasn't overcome the presumption of immigrant intent. Since consular officers typically don't explain the reasons for 214(b), except in very limited circumstances, applicants aren't sure whether they should apply again or not.
Early disclosure
The biggest mistake we see is when applicants fail to tell us when they have any criminal history – or they assume because they've gotten a visa before, it won't be a problem now. It will be. If you don't tell your attorney your history, they can't help you. Even if the incident happened 15 years ago, even if it was a single DUI when you were in college, even if you were found not guilty. Bring it up, and let us help. And don't even think about trying to hide it or deny it to the consular officer. When they ask you, "What happened in Phoenix, Arizona in June 2005," they didn't just pick a random city and year. They're asking because they see the arrest record.
Just the facts, ma'am
So what can you do? Disclosure and context is key. But consular officers want to know what happened, not just the results. You will need a full police record, written by the police officer at the incident. This helps both your attorney to fully understand the case, and the consular officer at the interview. If you don't have it, the consular officer will ask for it – and by that point, you won't be able to explain it. Then you'll need to put the incident in context. Was it a long time ago, and you're a different person now? Can you show that there's more to the story? Every case will be different, and we can help you tell the whole story, not just what's on the paper.
Need help?
No one in this situation should go it alone. Apart from the typical stress of a consular interview, an applicant with criminal history faces a host of more complicated questions.
Our firm regularly assists clients with:
- Completing DS-160 applications
- Preparing for consular interviews
- Scheduling (or rescheduling) visa appointments
- Advising on supporting documentation and admissibility issues
We offer consultations and full-service or partial assistance tailored to your needs. Please contact us with any questions!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
