Some individuals with criminal convictions may be inadmissible to the U.S. no matter how long ago the offense took place or how minor the conviction was. Because the U.S. Department of Homeland Security has comprehensive access to criminal records, any individual with a criminal record runs the risk of being denied entry into the U.S.
If you have been deemed inadmissible or you do not qualify for the juvenile record exception or the petty offense exception, you still have a chance of entering the U.S. by applying for a nonimmigrant waiver of inadmissibility.
In this waiver application, applicants must establish three factors to demonstrate their eligibility: 1) the risk of harm to society if the applicant is admitted; 2) the seriousness of the applicant’s criminal law or immigration law violation; and 3) the nature of the applicant’s reason for seeking entry.
If applicants make this showing, along with providing a host of other specialized forms and documents, they will be granted a waiver. Once approved, applicants are granted permission to temporarily enter the U.S. for business and personal reasons for a set period of time (anywhere from one to five years, depending on the situation).
“Thanks to the help of Berardi Immigration Law, my nonimmigrant waiver of inadmissibility was approved. When I met the immigration officer at the border, I was surprised he immediately identified that I had been previously arrested even though my case was sealed.
“I was granted entry without a problem, but I am wondering how the officer knew my history without seeing my case?”
Customs and Border Patrol (CBP) still have access to records that are sealed. Even if you have an expunged or sealed record, the U.S. government has access to that documentation and can see your records.
“I have a pardon from my government. Does this wipe my record clean?”
Unfortunately, it does not. Foreign government pardons are still convictions for U.S. immigration purposes. Many people who have been convicted of crimes in their past are ultimately granted pardons by their government, but this does not wipe your record clean in the eyes of the U.S. government.
An individual who has been convicted and whose sentence was suspended, reduced, mitigated, commuted, or who has been convicted and then granted probation or parole, is still considered to have been convicted for immigration purposes. Click here to view a short video on how criminal matters may impact your ability to enter the U.S.
“If I have pardon, can I answer ‘no’ when I’m asked by an immigration officer if I have any arrest or conviction record?”
Sometimes people are advised by their criminal lawyers that having a pardon allows them to answer “no” if they are asked about holding an arrest record or conviction. This is NOT the case at the U.S. border. Even if the record no longer exists, an individual must answer “yes” if questioned by Customs and Border Patrol (CBP).
“What if I have an ACD?”
Unlike a pardon, an ACD is not considered a criminal conviction. An ACD, or Adjournment in Contemplation of Dismissal, is a sentence typically offered to a defendant when the crime charged is a misdemeanor and the defendant has no prior record. In sum, the case is put on hold for a specified amount of time (generally six months) and if the defendant has stayed out of trouble throughout that time period, the charges are dismissed. Under New York State law, an ACD is not considered a criminal conviction for immigration purposes.
If you have been convicted of any crime in the past regardless of whether the record has been sealed, expunged or pardoned and are unsure if this makes you inadmissible to the U.S., our office can provide assistance. Please contact us today to schedule a consultation with one of our knowledgeable attorneys.