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Answering Criminal Questions on Immigration Applications DS-260 and DS-160

By March 14, 2023Immigration
A checklist of questions

In any circumstance where a noncitizen is applying for an immigration benefit, the noncitizen should answer questions in the application honestly and almost as importantly should make sure he is understanding what a question is asking. Failure to properly understand a question in an immigration application can lead to a potentially devasting consequence which can not only result in a denial of a benefit, but also result in a significant bar or punishment that could significantly complicate the process if not permanently bar the noncitizen from eligibility of the immigration benefit sought.

The most common type of question a noncitizen is likely to encounter when applying for an immigration benefit is a question related to a violation of law or past encounters with law enforcement authorities. The problem with these questions is that they may appear in different variations and more than once in an application that can most often confuse the noncitizen as to what is being asked. This could result as previously indicated in a wrong answer that could result in a denial if not a significant bar from applying for the benefit. We have discussed acts that can lead to disqualification from an immigration benefit also known as a finding of inadmissibility here. We have also discussed common misconceptions about criminal offenses and immigration consequences here.

Finally, even if the noncitizen understands the questions asked, it is still best to consult with an experienced immigration attorney if there has been any criminal history since a criminal related question may need further professional evaluation to confirm the appropriate answer based on present legal interpretation of an issue related to the question in the application.

Consular Processing

Consular Processing is the process when a noncitizen is applying for a benefit which is typically in the form of a travel document to enter the United States for a specific purpose. The benefit known as a nonimmigrant visa is a travel document that will allow the noncitizen to enter the United States for a temporary period of time for a specific purpose. Examples of this type of visa include temporary work visas, treaty investor visas and tourist visas. These cases will require the filing of the application form known as the form DS-160.

There is also the visa that is required to allow the noncitizen to enter the United States to live permanently in the United States known as an immigrant visa. Entry on this visa will result in the issuance of the green card when the noncitizen enters the United States. The visa application form for this visa is known as the DS-260. We discuss the consular process method of obtaining a green card here.

Criminal related question on both the DS-160 and DS-260

“Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon amnesty, or other similar action?”

Note that this question is not only asking about a conviction, but also asks for an arrest therefore the answer should be “yes” to this question even if the result was the noncitizen being found not guilty through a dismissal or acquittal after trial or if the noncitizen received a pardon or dismissal after a finding of guilt.

The main reason why this question is asked is because it is not always clear whether an arrest resulted in a finding of guilt and receiving a pardon or dismissal doesn’t always absolve a noncitizen from being disqualified from an immigration benefit. Furthermore, as we will discuss later, some violations don’t require actual convictions to lead to a finding that the noncitizen is ineligible for a benefit. Finally, an answer revealing any law violation will allow the examining immigration officer to review the criminal law violation to determine whether it will result in a negative immigration consequence.

“Have you ever violated, or engaged in a conspiracy to violate, any law relating to controlled substances?”

Note that this question is not only asking about arrests or convictions, but if the noncitizen had committed an act that violated any law related to a controlled substance offense. One of the main reasons for this question is that a violation of a controlled substance offense can result in being disqualified from an immigration benefit without the need of a conviction. Therefore, even if there was no finding of guilt in one of these cases, the noncitizen may not necessarily be in the clear.

“Are you coming to the United States to engage in prostitution or unlawful commercialized vice or have you been engaged in prostitution or procuring prostitutes within the past 10 years?”

“Have you ever committed or conspired to commit a human trafficking offense in the United States or outside the United States?”

“Are you the spouse, son, or daughter of an individual who has committed or conspired to commit a human trafficking offense in the United States or outside the United States and have you within the last five years, knowingly benefited from the trafficking activities?”

“Have you knowingly aided, abetted, assisted or colluded with an individual who has committed or conspired to commit a severe human trafficking offense in the United States or outside the United States?”

“Do you seek to engage in espionage, sabotage, export control violations, or any other illegal activity while in the United States?”

“Do you seek to engage in terrorist activities while in the United States or have you ever engaged in terrorist activities?”

“Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?”

“Are you a member or representative of a terrorist organization?”

“Are you the spouse, son, or daughter of an individual who has engaged in terrorist activity, including providing financial assistance or other support to terrorists or terrorist organizations, in the last five years?”

“Have you ever ordered, incited, committed, assisted, or otherwise participated in genocide?”

“Have you ever committed, ordered, incited, assisted, or otherwise participated in torture?”

“Have you ever been involved in, or do you seek to engage in, money laundering?”

These questions seem obvious since they reference specific crimes but note similar to the previous questions, the questions are not specifically asking about an arrest or conviction but asking for any involvement or intent to engage in specific criminal acts. Most likely the answer is “no” to these questions, but if the noncitizen has had any type of involvement in these types of criminal acts, it is likely this noncitizen will be found ineligible for an immigration benefit under the law. Therefore, such a noncitizen should consult with an immigration attorney to best determine how to answer these questions if there was any involvement in these types of crimes.

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