Will an arrest or conviction lead to the revocation of my visa?

Typically, it depends on the crime. A mere arrest does not lead to the revocation of a visa unless it is for “Driving Under the Influence” (DUI) or “Driving While Intoxicated” (DWI). In all other cases, law enforcement officials can report the information to ICE and the State Department; in which case, these officials would have the discretion to determine whether additional action is warranted.

As such, it is important to consult with a competent immigration counsel well versed in criminal immigration defense matters if you have been arrested and/or are facing further charges.

Can the consulate in my home country cancel my visa over an arrest if I have not even been convicted or if my records were expunged/sealed?

Yes. It is possible that your current U.S. visa stamp could be cancelled, especially if you have a “Driving Under the Influence” (DUI) or “Driving While Intoxicated” (DWI) arrest or conviction. This can prevent you from re-entering the U.S. after travel abroad and/or successfully applying for a new visa stamp in the future.

How will I know that my visa is cancelled?

Typically, the U.S. consulate in your home country will send you an email or a phone call stating that your visa was cancelled. Oftentimes, you may not find out until you go back to your home country, and try to return to the United States. In such cases, it may be advisable to find out before you leave the United States whether your visa was cancelled.

Can an arrest or conviction affect any other types of immigration applications?

You should assume that any application you file for an immigration benefit will involve a check for any arrest or criminal history. Extensive databases are maintained at the national level and are available to immigration authorities. You should consult with an immigration attorney about any history of arrest or conviction.

Will the consulate know if I have had an arrest or conviction if I do not provide that information on the visa application?

Yes, they will most likely have access to this information through other sources. You should never give a false answer to this question on the visa application or in the visa interview. Providing false information on a visa application or during an interview could result in a finding of fraud. A finding of fraud could result in a permanent bar from entering the U.S.

If any immigration form asks whether I have ever been arrested, how should I answer?

It is important to answer “yes” to this question if you were ever arrested or convicted of a crime, even if the charges were dropped or you were acquitted. You will have an opportunity to provide additional details about the arrest and the outcome. Lying on an immigration document about your arrest will have far greater negative consequences than being forthcoming about it.

How do I know if I was arrested?

If you are arrested by the police in the U.S., the officer must recite your “Miranda rights” to you. You’ve probably heard these on U.S. television shows. They include the lines “You have the right to remain silent,” and “You have the right to consult an attorney.”

You can also obtain a police clearance record from the agency that arrested you to obtain clarity.

Note that being arrested is not the same thing as being charged or convicted or a crime.

Will an arrest or conviction lead to revocation of my visa?

Typically, it depends on the crime. A mere arrest does not lead to the revocation of a visa unless it is for “Driving Under the Influence” (DUI) or “Driving While Intoxicated” (DWI). See 9 FAM 403.11- 3(U). Some consulates have started to email revocations based on mere arrests. 

In all other cases, law enforcement officials can report the information to ICE and the State Department; in which case, these officials would have the discretion to determine whether additional action is warranted.

As such, it is important to consult with a competent immigration counsel well versed in criminal immigration defense matters if you have been arrested and/or are facing further charges.

How can the consulate revoke my visa over an arrest?

Typically, the consulate has unfettered discretion to do what it wants and State Department decisions are not reviewable in any court or by a higher agency. The rationale for revoking a visa based on an arrest, such as for “Driving Under the Influence” (DUI) or “Driving While Intoxicated” (DWI) is that the person was inadmissible upon entry to the U.S., under § 212(a)(1)(A) of the Immigration and Nationality Act, which describes the health-related grounds of inadmissibility.

My visa has been revoked. Can I continue to stay in the United States?

It is important to remember that the cancellation of a visa does not mean your status has been revoked. You will continue to hold F-1 immigration status while you are in school and for the duration of the program, unless the Department of Homeland Security takes adverse action against you and places you in removal proceedings. 

If you’re close to completing your program, an attorney may advice you to finish your studies before you travel abroad to resolve the visa situation. You should talk to an immigration attorney to advise you on the best course of action.

Can the consulate revoke my visa even without a conviction or charges being filed in my case?

Yes. It is possible that your current U.S. visa stamp could be cancelled, especially if you have a “Driving Under the Influence” (DUI) or “Driving While Intoxicated” (DWI) arrest or conviction. This can prevent you from re-entering the U.S. after travel abroad and/or successfully applying for a new visa stamp in the future.

How will I know my visa was cancelled?

Typically, the U.S. consulate in your home country will send you an email or a phone call stating that your visa was cancelled. Oftentimes, you may not find out until you go back to your home country, and try to return to the United States that your visa has been revoked. In such cases, it may be advisable to find out before you leave the United States whether your visa was cancelled.

I was arrested and charged with a crime. What do I do?

It is important to retain two different lawyers in such cases—one for criminal defense and an immigration defense counsel that can advise you on how to proceed. It is not advisable to solely rely on your criminal defense attorney as they often cannot advice on immigration matters. Many immigration attorneys specialize in crafting plea deals that can help you avoid deportation or future visa revocation. 

What rights do I have if arrested by law enforcement?

When you get arrested, do not say anything to the police. Tell them that you want to talk to a lawyer. Tell them that you are not going to give them a statement. Do not give them any kind of additional evidence or information to use against you. They will use it against you.

Can an arrest or conviction affect future immigration applications?

You should assume that any application you file for an immigration benefit will involve a check for any arrest or criminal history even if the arrest or conviction was later expunged or sealed. You should consult with an immigration attorney about any history of arrest or conviction.

Will the Consulate know I was arrested or convicted even if I do not provide that information?

Yes, they will most likely have access to this information through other sources. You should never give a false answer to this question on the visa application or in the visa interview. Providing false information on a visa application or during an interview could result in a finding of fraud. A finding of fraud could result in a permanent bar from entering the U.S.

If an immigration form asks whether I have been arrested, how do I answer?

It is important to answer “yes” to this question if you were ever arrested or convicted of a crime, even if the charges were dropped or you were acquitted. You will have an opportunity to provide additional details about the arrest and the outcome. Lying on an immigration document about your arrest will have far greater negative consequences than being forthcoming about it.

How do I know if I was arrested?

If you are arrested by the police in the U.S., the officer must recite your “Miranda rights” to you. You’ve probably heard these on U.S. television shows. They include the lines “You have the right to remain silent,” and “You have the right to consult an attorney.”

You can also obtain a police clearance record from the agency that arrested you to obtain clarity.

Note that being arrested is not the same thing as being charged or convicted or a crime.

How do I prepare myself for travel abroad after an arrest or conviction?

You should first consult with an immigration attorney as to whether the arrest or conviction makes you inadmissible or deportable from the United States, or whether your visa can or has been cancelled. 

Next, you should try to obtain the police incident report and, if applicable, certified court records, surrounding each arrest or conviction. 

If you do not have a recollection of when and where the arrest or conviction occurred, you can obtain this information through an FBI identity summary https://www.fbi.gov/services/cjis/identity-history-summary-checks

You may need to present the final court disposition to a Customs and Border Agent or at your home consulate when seeking re-entry or a new visa to re-enter the United States. 

If I go abroad after an arrest or conviction, will I have difficulty returning to the United States?

Even after your criminal case is resolved, and even if the resolution doesn’t make you deportable, it could separately make you inadmissible, in other words ineligible for any future U.S. visa or green card. You should consult with an immigration attorney about any history of arrest or conviction and resolve it before leaving the United States if possible. 

The Consulate or USCIS is asking for my police reports. Should I send this to them?

Generally, it is not advisable to hand over police records to the government especially if the record is inaccurate or deficient and casts you in a poor light. Instead, you should obtain a police clearance report or if the case went to court, obtain a final certified court disposition

Note that being arrested is not the same thing as being charged or convicted or a crime.

Do you have any experience with immigrants or visa holders with criminal histories?

Lal Legal handles cases of both green-card holders with prior criminal records and visa-holders who have been arrested and/or convicted in the United States. We are equipped to advise on the immigration consequences of criminal convictions, craft plea deals with your criminal defense counsel, and advice on how to seek post-conviction relief if that is possible in your case.

Lal Legal, APLC - Law Office of Prerna Lal
Lal Legal is a leading law-firm specializing in immigration and tax issues.
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