Filing For U.S. Citizenship with Criminal Record

Can I File For U.S. Citizenship if I Have a Criminal Record?

Even if you have a criminal record, it is possible that you can still apply for your U.S. citizenship. When and if you should file your application depends on what type of crime you have committed, and how long ago you committed the crime. If you do decide to apply for U.S. citizenship, you will have to fill out a Form N-400. It will explicitly ask if you have ever been arrested, cited, or detained by any law enforcement officer for any reason.

Good Moral Character Standard

USCIS asks this question in order to establish that you possess good moral character, which is considered necessary in order for you to gain citizenship, for at least five years as a permanent resident, or three years if you are married to a U.S. citizen. You will still need to disclose this information regardless of whether or not your case was dismissed.

A USCIS officer, when establishing an applicant’s good moral character, will evaluate and analyze your criminal record, information provided in the application, and the testimony given during your interview. Although good moral character is generally established by a lack of convictions during the five years before you apply, USCIS can also consider actions from more than five years prior to your application.

Full Disclosure

Telling the truth on this application is crucial, as failure to correctly identify this information on your Form N-400 can result in you losing your citizenship application if any attempt to lie or mislead is discovered.

Even if your criminal record has been expunged, or removed from your individual record, you should still disclose it. For immigration purposes, this record can never fully be wiped clean. Further, USCIS will run your fingerprints and name through a variety of databases, so it is better to be safe than sorry in this case.

This can refer to crimes committed either in the U.S. or in another country, although there are exceptions if you are a refugee or asylum seeker who was subject to improper prosecutions by your government.

It is important to note that just because you have been prosecuted, arrested, detained, or cited for committing a crime, it does not mean that you are automatically barred from being able to obtain your citizenship.

 It just depends on your individual circumstances

Some crimes will serve as an immediate bar to citizenship, while others will be important when determining the strength of your moral character during your application process.

Crimes With a Permanent Bar

When we say that you have been barred from gaining citizenship, we are referring to the fact that even if you get an interview, USCIS cannot and will not approve your application. Because good moral character is a requirement to apply for U.S. citizenship, if you have committed a crime that demonstrates a lack of moral character you may never be able to become a citizen.

Crimes that will automatically bar you from being able to gain US citizenship are:

  • Murder
  • An aggravated felony for which you have been convicted of on or after November 29, 1990

The types of aggravated felonies that are considered may surprise you. Under USCIS definition, aggravated felonies refers to:

  • Murder
  • Rape
  • Sexual abuse of a minor
  • Illicit trafficking of a controlled substance
  • Illicit trafficking in firearms or destructive devices
  • Money laundering offenses which are over $10,000
  • Offenses that involve explosive materials
  • Firearms offenses
  • Crimes of violence for which you have been imprisoned for at least 1 year
  • Theft, for which you have been imprisoned for at least 1 year
  • Ransom, either request for or receiving it
  • Child pornography
  • Smuggling of illegal aliens, unless it is a first offense to aid a spouse, parent, or child but not this is an exclusive list of exceptions
  • Illegal entry, or reentry by a previously removed felon who was convicted for an aggravated felony
  • Document fraud, including your passport, for which you were imprisoned for at least 1 year
  • Failure to appear for a sentence
  • Fraud, deceit, or tax evasion offenses for which involve more than $10,000
  • Bribery, counterfeiting, forgery
  • Vehicle trafficking
  • Obstruction of justice, perjury, witness bribery
  • Racketeering or gambling, for which you have been imprisoned for at least 1 year
  • Managing, transporting, or trafficking prostitutes
  • Collecting or transferring secret information
  • Failure to appear in court
  • Attempt or conspiracy to commit another aggravated felony

It is important to also note that some of these crimes are typically considered as misdemeanors in state or local courts. Further, if you have innocently or mistakenly committed these criminal acts, it is still important to speak to a lawyer if you feel that it could inhibit your ability to gain citizenship.

Crimes With a Temporary Bar

In some instances, although you have committed a crime, that conviction, incarceration, or engagement in illegal activity will only temporarily bar you from being able to gain U.S. citizenship. USCIS refers to these as “conditional bars.”

These temporary bars can be instigated by a number of convictions, offenses, or activities that you would commit during your normal naturalization period. This includes right up to your Oath of Allegiance ceremony. The conditional bars will be triggered:

  • By a conviction or admitted involvement in one or more crime against moral turpitude, with an exception for political offenses. Crimes against moral turpitude typically include offenses that involve damage to property or harm to another person, including sex or domestic violence, or theft or fraud
  • By a conviction of at least two offenses which have resulted in a combined sentence of at minimum five years, with exceptions for political offenses
  • By a controlled substance violation, although there is an exception if it was for simple possession of less than 30g of marijuana
  • If you have been incarcerated for more than 180 days, with an exception for a political offense and an international confinement
  • If you gave false testimony for any immigrant benefits
  • If you have been involved in prostitution. This includes engaging in the act, attempting to import prostitution into the U.S., or receiving any financial benefit from prostitution
  • If you have been involved in illegally smuggling a person in the U.S. Attempts also count for this bar
  • By practicing polygamy, either in your current lifestyle or in your past
  • If you have two or more gambling offenses or your main source of income stems from illegal gambling
  • If you are or used to be a habitual drunkard
  • If you have failed or refuse to support your dependents, unless there are outside circumstances that can prove that it was not willful
  • If you have committed adultery, unless you have extenuating circumstanced that can be proven
  • If you have committed an unlawful act that tends to suggest against having a good moral character, unless you can establish that there were extenuating circumstances

Purely Political Offense Exception

Even if you have been convicted of such a crime, especially if you were convicted by a foreign government, you should be aware of whether or not you can apply for the purely political offense exception.

The Purely Political Offense Exception applies to convictions of crimes of moral turpitude that are purely political. This exception only works if you have been imprisoned or convicted outside of the U.S. solely for political reasons. This can occur because a government intended to oppress you under the color of law for racial, political, or religious reasons.

If you feel like this exception may apply to you, speak to an attorney.

Waiting Period for Temporary Offenses

If you have been convicted of a crime, and have subsequently been in the U.S. for either five years, or three if you are married to a U.S. citizen, then you still may be able to gain your citizenship. For further reference, those numbers are not arbitrary. Instead, they are the same parameters set for anyone who has to meet their permanent residence requirement.

Typically, it is advised that you wait for a little bit longer than the designated period. This will help you further establish your good moral character, and is considered to give you a larger chance for success.

Although you may be eligible for citizenship, it is still up to the discretion of the USCIS officer when they are evaluating your application. The officer still can, and may, deny you. Therefore, it is crucial to establish to them that your good moral character supersedes your past criminal history.

Crimes Not Specified

Although USCIS has determined a number of crimes that will either permanently bar you or temporarily bar you from being able to gain U.S. citizenship, other crimes may also have an effect on your application. Since you need to prove your good moral character in order to gain citizenship, it is important that you recognize that all crimes could potentially affect your case.

Example Crime: DUI

For example, a DUI can have a substantial effect on your application process, even though it has not been explicitly stated in the lists above by USCIS.

If, you have received a DUI, and it has been the only crime on your record, it is still possible for you to apply for U.S. citizenship and be naturalized. It will just be slightly more difficult since the reviewing officer will consider how your criminal record speaks to your good moral character.

Your good moral character will be determined by the circumstances and facts that are specific to your case. If it was your first offense, and no damage was caused by your actions, USCIS may look more favorably upon your application than if you had engaged in more reckless or negligent behavior.

In order to improve the possibility of being granted citizenship, you should take some steps to try to demonstrate that you are a good person. Following a conviction, such as a DUI, you could enter a treatment program, attend meetings, do volunteer work, or take any other relevant action to further prove your good moral character.

Typically, the USCIS officer will judge your moral character against what an average US citizen in your area would act like.

Conclusion

If you have been convicted of a crime, it is crucial that you consult with an immigration attorney before you apply for U.S. citizenship. How, when, and even if, you should submit your Form N-400, Application for Naturalization can be tricky, and it may improve your chances for success if you first get an attorney’s opinion on the matter.

Contact our experienced immigration lawyers in New York City today at (718) 407-0871 or online at https://www.prizant-law.com/ for creative solutions to our client’s complex immigration problems.


Contributed by Svetlana Prizant, an Award Winning New York Immigration Lawyer

Call or visit Prizant Law at:

Prizant Law at 118-21 Queens Blvd Suite 507, Forest Hills, NY 11375

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