Does an expunged criminal record have any effect on immigration applications?

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Question:

Does an expunged criminal record have any effect on immigration applications?

Answer:

An “expungement” is the deletion of a person’s entire criminal conviction record from any court, police record, or criminal justice agency. Different U.S. states take different approaches to expungement, but in general if the court expunges your criminal record, then within the context of the criminal justice system, you are considered to never have committed a crime at all.

In the immigration context, it’s a different matter. Though expungement may seems like a blessing, given that a criminal conviction can prevent a foreign national from entering the United States or cause a foreign national to be deported from the United States, it doesn’t necessarily work the way you’d expect. For immigration purposes a criminal conviction will always exist, no matter whether a court expunges your record or not.

That said, even if you do have a criminal record – expunged or not expunged – you may still be able to immigrate to the United States. It depends on such factors as the facts or your case, the nature of the crime, and the sentence.

Effect of Expungement on Coming to the United States (“Inadmissibility”)

If you have been convicted of a crime in either your home country or the U.S., you may be “inadmissible” to the United States. Being inadmissible means that even if you qualify for a visa or green card, immigration officials can still refuse to let you enter the country because of some condition in your past. Even if your criminal record is expunged, you may still be found inadmissible because of your conviction.

However, immigration law provides various “waivers” of inadmissibility. If you apply for and are granted a waiver, then you will be allowed to enter the U.S. notwithstanding your criminal conviction.

Nonimmigrant Waivers

To obtain a nonimmigrant waiver (that is, a waiver that allows you to obtain a nonimmigrant visa such as a B visa or an H-1B visa to enter the U.S.), you must prove to the U.S. government that your entry would not threaten the country or its citizens. To do so, you must file a waiver application that addresses the following three criteria:

1. any risk of harm to you would pose to the U.S. society

2. the seriousness of your conviction(s)

3. your reasons for wishing to enter the United States.

The Board of Immigration Appeals (B.I.A.) outlined these criteria in the immigration case Matter of Hranka, so the nonimmigrant waiver is sometimes referred to as the Hranka waiver. The U.S. consulate in your home country can provide you with detailed information on how to file the Hranka waiver application, and typically you file it with that consulate. If the consulate recommends that the U.S. government grant the waiver, the consulate will forward your application to the Admissibility Review Office (ARO). If the ARO grants your waiver, the consulate will issue your visa and you can enter the United States.

Immigrant Waivers

You will also need a waiver to enter the U.S. if you are immigrating (obtaining a green card or immigrant visa). The immigrant waiver is called an I-601 waiver. Not just anyone can apply for an I-601 waiver. To apply, the applicant must have a “qualifying relative,” which means a U.S. citizen or lawful permanent resident spouse, parent, or child (the child must be both unmarried and under the age of 21 to be a qualifying relative).

In addition to having a qualifying relative, the applicant must show that the qualifying relative would suffer extreme hardship if the U.S. refused to let the applicant enter the country.

Currently, an applicant files an I-601 waiver application at a U.S.consulate abroad. However, the procedures for filing an I-601 waiver are currently undergoing drastic revision, which will ultimately allow some applicants to file for these waivers from inside the United States. These changes have not been fully implemented yet and the I-601 process is unclear right now as the government prepares to transition from processing waivers abroad to processing waivers in the country. It is highly recommended you consult an immigration attorney before filing an I-601 waiver application.

Effect of Expungement on Rights to Stay in the United States

If you are convicted of a crime while you are lawfully in the U.S., the government may deport you back to your home country.

Deportation can happen to two types of foreign nationals:

  • foreign nationals who are in the U.S. with a nonimmigrant visa (such as a B visa or an H-1B visa) and
  • foreign nationals who have their green cards (lawful permanent residents).

(Of course, deportation can also happen to foreign nationals who are in the country illegally, whether they’ve been convicted of a crime or not.)

First, if you commit a crime while in the U.S. with a nonimmigrant visa, the government takes the view that you have violated the conditions of your visa and should be deported. It may be possible to avoid deportation, but you must contact a skilled immigration attorney specializing in criminal convictions in order to remain in the country.

Second, if you have a green card, committing a crime can result in the loss of your green card and deportation (removal). It may be possible to avoid deportation, but anyone in this situation should contact an immigration attorney who can assist with this serious issue.

 

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