
As indicated in our previous blog addressing criminal questions in DS-160s and DS-260s, any circumstance where a noncitizen is applying for an immigration benefit, the noncitizen should answer questions honestly and almost as importantly should make sure he is understanding what a question is asking. We discussed how to address criminal questions in the consular forms DS-160 and DS-260 here. 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.
With respect to questions related to a past encounter with law enforcement authorities, these questions may 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.
Adjustment of Status, Change of Status and Extension of Status
When a noncitizen is present in the United States on a certain visa category if the noncitizen needs to change status to another status or extend status, most often the noncitizen will be required to submit form I-539 to the United States Citizenship and Immigration Service, “USCIS.” If the noncitizen is present in the United States on a certain immigration status and then is able to apply for a green card, the noncitizen will go through the adjustment of status process by filing form I-485 with USCIS. We have discussed the adjustment of status process here. We have discussed the differences between a change of status and adjustment of status process here. We have also discussed obtaining a green card through the adjustment of status process here.
Criminal related question on the I-539
“Have you, or any other person included in this application, EVER been arrested or convicted of any criminal offense since last entering the United States?”
Since some criminal violations do not necessarily require a conviction and it is not always clear under a specific state law whether a violation has resulted in a conviction, the question is intended to elicit an answer revealing any law enforcement encounter to allow the examining immigration officer to review the criminal law violation to determine whether it will result in a negative immigration consequence.
Criminal related question on the I-485
“Have you EVER been arrested, cited, charged, or detained for any reason by any law enforcement official (including but not limited to any U.S. immigration official or any official of the U.S. armed forces or U.S. Coast Guard)?”
“Have you EVER committed a crime of any kind (even if you were not arrested, cited, charged with, or tried for that crime)?”
As previously mentioned, since some criminal violations do not necessarily require a conviction and it is not always clear under a specific state law whether a violation has resulted in a conviction, the question is intended to elicit an answer revealing any law violation to 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 pled guilty to or been convicted of a crime or offense (even if the violation was subsequently expunged or sealed by a court, or if you were granted a pardon, amnesty, a rehabilitation decree, or other act of clemency)?”
This is the first question we encounter inquiring about a conviction but note that the question further clarifies that a conviction should still be disclosed regardless of whether the court later dismissed the conviction or through a pardon, amnesty or any other related act of clemency. The purpose of the question is to confirm the existence of any past conviction for the examining officer to then determine whether the conviction is still a conviction under immigration law and if the conviction will lead to ineligibility of an immigration benefit.
“Have you EVER been ordered punished by a judge or had conditions imposed on you that restrained your liberty (such as a prison sentence, suspended sentence, house
arrest, parole, alternative sentencing, drug or alcohol treatment, rehabilitative programs or classes, probation, or community service)?”
“Have you EVER been a defendant or the accused in a criminal proceeding (including pre-trial diversion, deferred prosecution, deferred adjudication, or any withheld adjudication)?”
“Have you EVER violated (or attempted or conspired to violate) any controlled substance law or regulation of a state, the United States, or a foreign country?”
“Have you EVER illicitly (illegally) trafficked or benefited from the trafficking of any controlled substances, such as chemicals, illegal drugs, or narcotics?” “Have you EVER knowingly aided, abetted, assisted, conspired, or colluded in the illicit trafficking of any illegal narcotic or other controlled substances?”
These last four questions are also designed to reveal any violations, not just convictions to allow the examining immigration officer to review the criminal law violation to determine whether the violation or violations will result in a negative immigration consequence.
“Have you EVER been convicted of two or more offenses (other than purely political offenses) for which the combined sentences to confinement were five years or more?”
Another specific conviction related question. This question is a bit clearer than the previous questions since it is specifically asking about a conviction of two or more crimes resulting in confinement of five years or more. The reason the question is asked is because a conviction for these convictions will clearly lead to disqualification of the green card. Regardless, an attorney can still determine whether the violations are considered convictions under state and immigration law and whether there are options to overcome the ineligibility.
“Have you EVER engaged in prostitution or are you coming to the United States to engage in prostitution?”
“Have you EVER directly or indirectly procured (or attempted to procure) or imported prostitutes or persons for the purpose of prostitution?”
“Have you EVER received any proceeds or money from prostitution?”
“Do you intend to engage in illegal gambling or any other form of commercialized vice, such as prostitution, bootlegging, or the sale of child pornography, while in the United States?”
Questions related to the commission of other violent or potentially criminally related acts like terrorism, espionage, human trafficking, torture or genocide.
These questions are asked since participation in these acts do not require a conviction to result in a negative immigration consequence.
Related criminal questions in other USCIS Immigration forms
Variation of these questions will also be encountered in other USCIS forms. What should be remembered is that the noncitizen should focus on whether the question is asking specifically for a conviction where if the noncitizen was arrested and not convicted, the answer should be “No.” However, the tricky questions as we discussed are those questions related to violations, arrests, whether the noncitizen committed acts which constitute the essential elements of certain crimes or participating in the conspiracy to violate a specific violation of law. In these questions, if the noncitizen was involved in committing a violation of a law asked, the likely answer is “yes” however, take note that especially with these trickier questions, the guidance of an experience immigration attorney is critical to confirm how to answer these questions and how to present explanation of how the noncitizen has not been disqualified for violating a criminal law.
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