Immigration
How Past Encounters with Law Enforcement Can Affect Your Immigration JourneY
By Buchanan Attorneys Khushbu Patel and Dilip Patel
Have you ever wondered if a minor run-in with the law years ago could impact your hopes of living and working in the United States? The truth is any encounter with law enforcement —even if it happened a long time ago or resulted in no conviction — can complicate your immigration case. Let’s explore why this is important and how you can navigate this tricky terrain.
Did You Know? No Incident Is Too Old or Too Small
Many people assume that an old arrest, a dismissed charge, or an incident that did not lead to a conviction will not matter. Unfortunately, that is not always the case. U.S. Citizenship and Immigration Services (USCIS) has been routinely checking criminal history databases, including FBI records. Even if an incident was years ago or was not prosecuted, it can still come up during your immigration process.
Have you ever disclosed such incidents on your visa or immigration forms? Even if you have, USCIS has access to information you might not remember or think is relevant. This includes minor infractions or cases that were expunged or dismissed. Many immigration forms ask whether an individual has been arrested. For example, many individuals often assume that if the case was dismissed or dropped, or if the incident took place several years ago, they can safely answer no. Others may fail to disclose the arrest because it was dismissed and the records were expunged. However, all arrests have to be disclosed whether or not they led to a conviction and whether or not the records were expunged.
What does this mean for you? It means that any past encounter could potentially influence your eligibility for a visa, green card, or other immigration benefits.
To determine if an individual has a criminal record, USCIS may issue a Request for Evidence (“RFE”) requesting biometrics to be completed. USCIS may also request a complete criminal record — official arrest reports, court records, final dispositions, or even documents indicating that charges were dismissed or expunged.
Typically, you will need:
- Certified arrest or police reports
- Court records showing the final outcome
- Court orders vacating or sealing charges, if applicable
If official records are not available, a letter from the relevant authorities explaining that no record exists may suffice.
The New Reality: Discretion Is More Powerful Than Ever
In years past, simply providing documents showing no conviction or a clean record often sufficed. Today, USCIS officers have broader discretion. They can deny benefits based on their judgment, especially if they believe your criminal history reflects poorly on your character or poses a security concern.
For example, conduct supporting terrorist organizations or hateful ideologies can carry “overwhelmingly negative weight” in their assessment. As such, proactively presenting evidence of rehabilitation, community involvement, stable employment and family ties in the U.S. can make a difference.
How Should You Respond?
If you are asked for evidence or believe your case might be scrutinized due to your criminal history, gather documents that show your positive qualities:
- Personal statements explaining your circumstances and progress
- Letters of recommendation from community leaders, employers, or religious figures
- Evidence of community service, employment, and family responsibilities
- Proof of compliance with court conditions like probation or community service
- Records showing no recent incidents.
Special Considerations for Work Visas
For those applying for work visas like the H-1B or green card through employment, there is another layer of complexity. Even if your petition is approved, your actual status — your ability to enter or stay in the U.S. — can still be denied based on discretion. In fact, recent policies have heightened scrutiny of criminal backgrounds, and in some cases, even a minor past issue could lead to a denial of your change or extension of status.
What Are the Implications?
A denied status can mean you have to leave the U.S. or face hefty fees if you are processed through a consulate abroad. For example, some recent policies impose a $100,000 fee on certain H-1B petitions if applicants are approved only for consular processing, not for change of status in the U.S.
Final Thoughts: Be Proactive and Prepared
Do you have a past criminal record? Do not wait until the last minute to address it. Working with experienced immigration counsel and preparing your documents thoroughly can significantly improve your chances. Remember, honesty and proactive efforts to demonstrate your rehabilitation are your best tools in navigating this complex process.
Tampa Bay area welcomes Attorney Khushbu Patel
We are pleased to introduce Attorney Khushbu Patel to our readers. Khushbu is an experienced immigration attorney and has recently joined the Buchanan Ingersoll & Rooney law firm to work with Dilip Patel, who writes our immigration articles. Khushbu brings with her a wealth of knowledge in immigration law and a passion for helping individuals and families navigate the complexities of the immigration process.
Khushbu was born and raised in Richmond, Va., where she developed a strong foundation in legal principles and a deep commitment to serving her community. She earned her law degree from a respected institution, Rutgers Law School, where she developed a keen understanding of the challenges faced by immigrants in the United States.
She married in April 2024 and recently moved to the Tampa area with her husband, who works in commercial contracting. Khushbu’s move to Tampa not only marks a new chapter in her personal journey but also allows her to contribute her expertise to the growing community in the region. Fluent in Gujarati, she is an active member of the BAPS Swaminarayan Mandir in Thonotosassa, Florida.
We are thrilled to welcome Khushbu to our readers and look forward to the invaluable information she will provide to them in the field of immigration law.