Effect of Arrest on Immigration Status

If you are arrested by the police in the US, you may be placed in handcuffs, the officer recites your “Miranda rights” to you, and takes you into custody. You’ve probably heard Miranda rights on US television shows. They include the lines “You have the right to remain silent,” and “You have the right to consult an attorney.”

In addition to being taken into custody, it’s important for you to realize that some seemingly minor interactions with the police can nevertheless result in an arrest record. For example, getting a Desk Appearance Ticket means that you have been arrested.  This means that you would need to answer “yes” to any questions about past arrest. Some examples of actions that could result in Desk Appearance Tickets or arrests:

●      Jumping a turnstile or going in through a subway exit gate,

●      Any fight or argument leading to police interaction,

●      Underage drinking (legal drinking age in the US is 21 years),

●      Possession of Marijuana or other illegal drugs,

●      Carrying an open alcohol container or drinking in public,

●      Any behavior deemed to be sexual harassment or stalking,

●      Public urination,

●      Being in a public park after closing,

●      Being on private property without permission, including abandoned buildings or vacant lots,

●      Making graffiti or sidewalk art

No. Normally a person is charged with a crime after being arrested but it is also possible that a person is charged with a crime before being arrested through a warrant for an arrest. The charge can come from either a prosecutor or a grand jury (called an indictment) and a court officer or judge will list the law/s you are alleged to have violated. It is possible to be arrested and released without ever being charged. This is where students often get a wrong impression and mistakenly answer “no” on the visa application. If you are ever arrested, you must still answer “yes” on the visa application question.

If you ever find yourself charged with a crime, we recommend that you find two attorneys--one that specializes in immigration law and one that specializes in criminal law.  Without the guidance of the immigration attorney, a criminal attorney may not understand the legal impact of his or her advice on your immigration status.  It is important to have the right kind of attorney to help you understand the court proceedings and what they mean for your individual situation.

If you are never charged with a crime, you cannot be convicted. If you are charged with a crime, but the charges were dropped, you cannot be convicted unless new charges are filed later. If you are brought before a court and plead guilty or are found guilty, then you have been convicted.

Visas are granted at the discretion of the individual visa officer. Depending on the severity of the crime, a conviction may make it difficult or impossible for you to get a visa to enter the US. For advice about your specific case, you will need to contact a personal immigration attorney.

 

An arrest, even without a conviction, may have an impact on your current visa and/or your visa renewal, depending on the nature of the arrest (see more about DUIs below). Never give a false answer to any question during the visa process; be sure to answer “yes” if you are asked whether you have ever been arrested. Students have been denied a visa for giving a false answer to such a question.

We are required by law to report, within 21 days, “any disciplinary action taken by the school against the student as a result of the student being convicted of a crime.” This reporting action by itself does not automatically result in a termination of status. However, the information will be available to Immigration and Customs Enforcement (ICE) agents, who will determine whether additional action is warranted. Additionally, if the disciplinary action is school suspension or expulsion, this may result in a loss of status for not maintaining full-time enrollment.

 

An arrest or conviction that does not result in a disciplinary action by NYU may still be reported by law enforcement officials to ICE; in which case, ICE officials would have the same discretion to determine whether additional action is warranted.

Yes, they will most likely have access to this information through other sources. You should never give a false answer to this question on the visa application or in the visa interview. Providing false information on a visa application or during an interview could result in a finding of fraud. A finding of fraud could result in a permanent bar from entering the US.

You should assume that any application you file for an immigration benefit will involve a check for any arrest or criminal history. Extensive databases are maintained at the national level and are available to immigration authorities. You should consult with an immigration attorney about any history of arrest or conviction that may be of concern. Contact us if you’d like a listing of immigration attorneys NYU students have worked with in the past.

Yes. It is possible that your current US visa stamp could be cancelled, especially if you have a "Driving Under the Influence" (DUI) or "Driving While Intoxicated" (DWI) arrest or conviction. Please note, even if you aren't arrested, it is possible this information is available to the US Consulate abroad and they may cancel your valid visa stamp currently on file. This could prevent you from reentering the US after travel abroad and/or successfully applying for a new visa stamp in the future.

Typically, if your visa stamp itself has been cancelled but your status remains valid and unexpired, a visa cancellation does not disrupt your period of stay in the US unless you leave the US. If you depart the US, you must reapply for a new visa stamp.

If you have drug or alcohol related arrests/convictions, you could be referred to a Panel Physician in your home country (or country of application) for evaluation during your visa interview. This physician will  make a determination if you are an "abuser or addict" and/or if you present a danger to yourself or others. It is possible that you can be required to stay at home for a year or more seeking treatment in order to be considered for another visa stamp.

 

You should only travel if you understand and are willing to risk not being able to return to the US for an extended period of time.  You may also want to retain an immigration attorney with details specific to your case.

For immigration purposes a criminal conviction remains, no matter whether a court expunges your record or not. This means that your future visa applications could be affected, and you shouldn’t assume that expunging or sealing your record will prevent you from experiencing any difficulty. We recommend that you find two attorneys: one who specializes in immigration law and one who specializes in criminal law to discuss further details surrounding your expunged or sealed case.