When renewing a green card after an arrest or criminal offense, be aware that U.S. Citizenship and Immigration Services (USCIS) will review the record of the permanent resident.
There are several crimes that can be deportable offenses. And some criminal offenses do not require a conviction to trigger inadmissibility or deportability for an immigrant. When renewing or replacing a green card, these crimes will be revealed to USCIS. Each time a permanent resident files Form I-90, Application to Replace Permanent Resident Card, USCIS requires the applicant to pay for and undergo a criminal background check.
The way that USCIS treats these crimes has also changed over the years. Therefore, a crime that was not a deportable offense 15 years ago could be a deportable crime now. It is very important that anyone with a criminal record understand their situation before filing for a green card renewal.
Obligation to Renew/Replace a Green Card
At the same time, an arrest should not stop a permanent resident from renewing or replacing a green card. In fact, there is a legal obligation for a permanent resident over 18 years of age to carry a valid (unexpired) green card at all times. For practical reasons, a valid green card is needed for obtaining employment, traveling abroad and even renewing a driver’s license. Avoiding the problem won’t make it go away.
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What Happens at a Biometrics Appointment
A few weeks after filing Form I-90, USCIS will mail the applicant an appointment notice by mail. The notice provides the date, time and location to appear for a biometrics appointment. The biometrics appointment is relatively short, only about 15 to 30 minutes, and is used to obtain the permanent resident’s fingerprints and photograph. USCIS will use the biometrics to create a new green card, but they also use it to run a criminal background check.
USCIS will send the applicant’s name and fingerprints to the Federal Bureau of Investigation (FBI). The FBI will check the information against databases held by numerous law enforcement agencies. USCIS will be able to determine if the applicant has any crimes or immigration violations on his or her record.
Anyone that believes they may have a criminal record should contact an immigration attorney before filing for the green card renewal. An attorney can obtain a copy of the applicant’s arrest record first and help him or her through the process. Depending on your specific situation, an attorney may be able to expunge the record or obtain a waiver.
Types of Deportable Crimes
The Immigration and Nationality Act (INA) contains an extensive list of deportable crimes. It’s not as simple as saying that a felony will cause a green card holder to be deported.
A crime that is considered a felony in one’s state may not be a deportable crime according to the INA. On the other hand, a crime that’s considered a mere misdemeanor at the state level could be a deportable offense when USCIS reviews a file. When renewing a green card after an arrest, the following types of offenses could make the green card holder deportable:
- an aggravated felony
- a crime of moral turpitude within five years of receiving a green card
- two deportable crimes at any time
- a sex crime
- a drug crime
- domestic violence
- a firearms offense
- a fraud-related offense.
This is only a summary. To understand whether a felony constitutes an “aggravated felony” requires the assistance of a qualified and experienced attorney.
What Is an Aggravated Felony?
The term “aggravated felony” is used and defined in the Immigration and Nationality Act, but it can be very misleading. In many cases, the INA’s definition of aggravated felony includes crimes that are not aggravated and are not felonies. People who have been convicted of misdemeanors, or of other crimes that were not charged as felonies in their state, have been found to have committed an aggravated felony and been deported.
In immigration law, an aggravated felony is defined much more broadly than in most state’s criminal laws. The definition is found in Section 101(a)(43) of the Immigration and Nationality Act, or Section 1101(a)(43) of the U.S. Code.
The INA definition names the following as aggravated felonies:
- murder, rape, or sexual abuse of a minor
- illicit trafficking in a controlled substance
- illicit trafficking in firearms or destructive devices or in explosive materials
- money laundering or engaging in monetary transactions in property derived from specific unlawful activity if the amount of the funds exceeded $10,000
- certain explosive materials or firearms offenses
- a crime of violence (not including a purely political offense) for which the term of imprisonment at least one year
- theft (including receipt of stolen property) or burglary if the term of imprisonment was at least one year
- kidnapping or making a demand for or receipt of ransom
- child pornography
- racketeering, or gambling if a sentence of one year imprisonment or more could have been imposed
- owning, controlling, managing, or supervising a prostitution business; transportation for the purpose of prostitution if committed for commercial advantage; or peonage, slavery, involuntary servitude, or trafficking in persons
- gathering or transmitting national defense information, disclosure of classified information, sabotage, treason, or compromising the identity of undercover intelligence agents
- fraud or deceit in which the loss to the victim or victims exceeds $10,000; or tax evasion in which the revenue loss to the Government exceeds $10,000
- alien smuggling, except a first offense for which the alien has affirmatively shown the purpose of assisting, abetting, or aiding only the alien’s spouse, child, or parent (and no other person)
- illegal U.S. entry by an alien who was previously deported on the basis of an aggravated felony conviction
- falsely making, forging, counterfeiting, mutilating, or altering a passport or instrument (document fraud) for which the term of imprisonment is at least 12 months; except in the case of a first offense for which the alien has affirmatively shown that the offense was committed for the purpose of assisting, abetting, or aiding the alien’s spouse, child, or parent (and no other person)
- failure to appear for service of sentence if the underlying offense is punishable by imprisonment for 5 years or more
- commercial bribery, counterfeiting, forgery, or trafficking in vehicles the identification numbers of which have been altered, if the term of imprisonment is at least one year
- obstruction of justice, perjury or subornation of perjury, or bribery of a witness, for which the term of imprisonment is at least one year
- failure to appear before a court pursuant to a court order to answer to or dispose of a charge of a felony for which a sentence of 2 years’ imprisonment or more may be imposed
- an attempt or conspiracy to commit an aggravated felony.
An overview of aggravated felonies is also available from the American Immigration Council.
Renewing a Green Card after an Arrest for a Drug Crime
Any conviction for a controlled substance violation (crimes involving drugs or drug paraphernalia), with the exception of simple possession of less than 30 grams of marijuana, is potentially grounds for denial of a green card renewal and can start removal proceedings. Even if the state considers the violation a misdemeanor, immigration law treats it differently. And although possession of less than 30 grams of marijuana is not grounds for denial of a green card renewal and removal, it can result in inadmissibility. A permanent resident that travels abroad may be found inadmissible when attempting to re-enter the United States. The permanent resident should speak to attorney before traveling to determine if a waiver of inadmissibility may be necessary.
Renewing a Green Card after an Expunged or Vacated Conviction
In certain circumstances, expunged and vacated convictions may be treated as convictions for purposes of immigration.
Examples of certain criminal activity that can make a person deportable or inadmissible without a conviction are:
- Holding oneself out to be a United States citizen (even just on a job application)
- Where there is reason to believe a non-citizen either was or is a trafficker in controlled substances
- Immigration fraud
- Marriage fraud
The simple act of renewing a green card after an arrest can expose serious problems for the applicant. Understand how your arrest may (or may not) affect your immigration status. Regardless of the type of crime, anyone with an arrest should consult with an experienced immigration attorney before filing any USCIS immigration form.
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Note to Reader: This post was originally published on April 25, 2017, and has been modified with improvements.