What Happens When a Foreign Student Gets Arrested in the U.S.

Your ability to remain in the United States on a student visa (F-1 or M-1) depends on your not only going to school and studying as expected, but obeying the broader rules that apply to any visa holder in the United States, including that you not commit any of various types of crimes.

It is your responsibility to know what actions are legal in the United States or not. Do not follow the example of your fellow U.S. citizen students, who might take their chances with crimes like driving while under the influence of drugs or alcohol (DUI or DWI), using illegal drugs, handling unlawful firearms, partying hard enough that it's considered disorderly conduct or public intoxication, and so on. Even participating in political demonstrations has become risky.

As described in further detail below, some of the consequences you could face upon an arrest for a crime while studying in the United States are as follows:

• you could face criminal punishment in the U.S., such as fines or prison
• you won't be allowed to leave the U.S. until your criminal case has reached its conclusion
• you could be suspended or expelled from the school upon which your visa depends
• you could be removed (deported) from the U.S.
• your student or any other visa could be revoked, and
• you could be prohibited from returning to the United States for some years into the future, or permanently.

This article will also offer tips on what to do about the situation if you are arrested.

You Will Face Punishment Within the U.S. Criminal Court System

If you commit a crime in the United States, you will be subject to all the laws and potential punishments that might apply to a U.S. citizen. You could be charged with a criminal offense, jailed while awaiting the trial (or freed upon paying bail), tried in criminal court, and ultimately sentenced with a monetary fine, prison time, or other penalty.

Many criminal cases are resolved fairly quickly, by means of the person pleading guilty and receiving a reduced sentence in return. But as a foreign-born person, you need to be extra careful about what you plead guilty to, because the conviction will have long-lasting consequences for your immigration record.

You Won't Be Able to Leave the United States Until the Criminal Case Is Decided

Once a foreign national has been charged with a crime in the United States, leaving the country becomes impossible until the case has been resolved and any penalty time served. That can mean weeks, months, or even years of waiting and then possibly sitting in prison. You would no longer be able to spend vacations with family in the home country.

You Could Be Suspended or Expelled From School

Regardless of whether you are ultimately convicted of a criminal act, your academic institution might not look kindly on whatever behavior led to the arrest. That could result in your being suspended or expelled from school, thus creating a cascade effect of negative consequences.

The school will also need to report your absence from classes and study to the U.S. government's SEVIS database, which could result in a termination of your right to remain in the United States.

Your Visa Could Be Revoked

The U.S. Secretary of State has discretionary authority to revoke a nonimmigrant visa at any time. (See I.NA Section 221(i).) And the Department of State (DOS) can revoke someone's visa if and when it receives "derogatory information," such as the foreign national's reported arrest. The DOS wouldn't even need to wait for an actual criminal conviction from the court.

Once your visa is revoked, you would be considered unlawfully present in the United States, and Immigration and Customs Enforcement (ICE) could begin removal proceedings accordingly.

You Could Be Removed From the United States

If USCIS catches you in either a criminal or an immigration status violation, it could place you and your spouse and children into removal (deportation) proceedings in immigration court. Not every crime will make someone deportable, but the list of possibilities is a long one, including any aggravated felony, any crime of moral turpitude (CIMT), any drug crime (or a conspiracy or attempt to commit one) except a single offense involving possession for personal use of 30 grams or less of marijuana, any abuse of drugs (even without a court conviction), espionage, firearms offenses, and more.

See Grounds of Deportability: When Legal U.S. Residents Can Be Removed for more information.

Once you have been removed from the United States, you will be barred from return for a number of years, typically 10, unless you are eligible and successfully apply for a waiver. See How Long After Deportation Must I Wait Before Returning to the U.S.? for details.

On top of this, even if you avoid deportation, the U.S. immigration judge will likely find that your violation caused some of your time in the United States to be deemed "unlawful," which will cause another bar to reentry, as described in Consequences of Unlawful Presence in the U.S.--Three- and Ten-Year Time Bars.

You Could Face Difficulty Returning to the United States in the Future

If the U.S. consulate in your home country gets wind of your having been arrested for a DUI, it can revoke your visa from afar. For other violations, it cannot take such action while the person is still in the United States, but an exception is made for DUIs. (See 9 FAM 403.11- 3(U).) The rationale for this exception 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.

Even after your criminal case is resolved, and even if the resolution doesn't make you deportable from the U.S. in the short term, having a crime on record could separately make you inadmissible; in other words ineligible for any future U.S. visa or green card. See Inadmissibility: When the U.S. Can Keep You Out for details.

Get Legal Help With Both Your Criminal and Immigration Cases

You will likely need to hire two lawyers: one who specializes in criminal law and one who specializes in immigration law. Very few attorneys are up to speed on both, though the overlay of the two is a subspecialty of immigration law, often called "crimmigration."

You wouldn't, for example, want to follow a criminal attorney's advice to plead guilty to something seemingly minor in order to avoid prison time, only to later discover that you have admitted to a crime that will make you deportable from or inadmissible to the United States.