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

What a foreign student can expect from the U.S. criminal justice system and how your F-1 or M-1 nonimmigrant status will be affected.

By , Attorney · University of Pittsburgh School of Law

Your ability to remain in the U.S. 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 U.S., including that you not commit any of various types of crimes.

It is your responsibility to know what is legal in the United States or not. Don't 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, and so on.

As described in further detail below, some of the consequences you could face upon an arrest 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.

You'll 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 may be charged with a crime, jailed while awaiting the trial (or freed upon bail), tried in criminal court, and ultimately sentenced with a fine, prison time, or other penalty.

Many criminal cases are resolved fairly quickly by 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 U.S. Until the Criminal Case Is Decided

Once someone has been charged with a crime in the U.S., leaving the country becomes impossible until the case has been resolved and any time served. That can mean weeks, months, or even years of waiting, with no vacations spent with family in the home country.

You Could Be Suspended or Expelled From School

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

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.

You Could Be Removed From the U.S.

If USCIS catches you in an immigration status violation, it could place you and your spouse and children into removal proceedings in immigration court. Not every crime will make someone deportable, but the list is a long one, including any aggravated felony, any crime of moral turpitude (CIMT), a 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 ten, unless you are eligible 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 immigration judge will likely find that your violation caused some of your time in the United States to be "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.

Your U.S. Visa Could Be Revoked

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.

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

Even after your criminal case is resolved, and even if the resolution doesn't make you deportable, 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'll likely need 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.

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