Should I Tell U.S. Immigration About Foreign Arrest If Charges Dropped?

If you are applying for a green card in the United States after marrying a U.S. citizen, and using the procedure known as "adjustment of status," you will need to fill out application Form I-485. And you'll notice that one question on that form asks: "Have you ever, in or outside the United States: Been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations?"

This leads to worry among applicants who, for example, were arrested a long time ago in their overseas home, but where the charge was later withdrawn. They wonder whether they can avoid complicating their case by bringing up the past, since ultimately they weren't charged with a crime; or whether the U.S. government will find out about the arrest and regard their failure to mention it as a lie. That is what this article will address, including:

• whether failing to mention dismissed criminal charges will be looked upon as a lie, and
• how risky it would be to not disclose this information.

Will USCIS Catch a Lie About Dismissed Foreign Criminal Charges?

Historically, U.S. government access to foreign criminal records (other than Canada's) has been limited. Therefore, if you do not tell U.S. Citizenship and Immigration Services (USCIS) about your arrest, there is a chance that the agency will not find out about it.

Nevertheless, given how quickly information-sharing technologies and policies are improving, and how serious the consequences for failing to disclose one's criminal background can be, you would be taking a chance on this.

Also, for adjustment of status applicants who have been associated with national security threats or organized crime, records of foreign convictions might already be available to USCIS through U.S. government databases and could be retrieved automatically after the biometrics appointment (at which your fingerprints will be taken).

For all other adjustment of status applicants, USCIS would need to make an individual records request through Interpol. That is unlikely to happen unless an application raises particular suspicions. Add to this the fact that foreign governments might be reluctant to share records of arrests and charges that did not result in a conviction, and you could reasonably conclude that USCIS is unlikely to find out about your criminal history.

How Risky Is It to Say Nothing About the Arrest on Form I-485?

Even the remote chance that USCIS might find out about that background should dissuade you from answering "No" to the Form I-485 question about your previous arrest and charge.

Your record could be revealed if, for example, you traveled outside the United States one day and were required, for one reason or another, to apply for an immigrant visa in order to reenter the country. In this case, you might also need to submit a police certificate with your U.S. visa application. As a result, you would be found inadmissible to the United States on grounds of "willful misrepresentation"; in other words, for failing to disclose your criminal background. (And, even assuming you managed to obtain a waiver for this bar, your future access to U.S. citizenship could be jeopardized for lack of "good moral character.")

These risks seem unnecessary, especially because, in the absence of aggravating factors, many minor crimes would not make you inadmissible even if you were eventually found guilty of (or pled guilty to) a criminal act; though USCIS would still want to judge for itself your explanation of the circumstances of your arrest and dismissal.

Getting Legal Help

When in doubt, especially about something as complex as the overlay of criminal and immigration law, hiring an attorney to help with your green card application can make your life much easier. The attorney can not only analyze the risks but help you with the paperwork and draft a cover memo explaining the facts of your arrest and dismissal and charges, and making the argument that it should have no affect on your U.S. immigration prospects. Also see How Expensive Is an Immigration Lawyer?