Criminal History Records

If you have ever been arrested, or convicted for a crime, it would have serious effect on your immigration status. Often, immigration petitions/applications will ask you for if you have ever been arrested, charged, or convicted. Having an arrest or conviction, does not automatically disqualify you, however, you will need to submit documentation of those arrests and convictions.

Be honest. You can not hide your criminal record from the USCIS. They have access to the FBI criminal database, and if you have been in trouble before, they will find it. Failure to disclose your criminal history can result in the denial of your petition/application.

Again, having been arrested or convicted is not an automatic disqualification. Depending on the particular petition/application and the nature of the crime, only recent arrests and convictions will be considered. However, you must still disclose ALL past arrests and convictions.

First it is advisable for you to run a complete national criminal background check on yourself (if you have been arrested or convicted a number of times). These are available online for a fee. Once you have an idea of all of your arrests and convictions, you will need to contact each particular court with your case number to get the file. It is important to get the “complaint” or “information”, or “charging document”. This will show what crime you were being charged with. Also it is important to get the “order”, “sentence” or any other document which showed that a case was dismissed or a sentence was imposed. Finally, if you were sentenced, you will need some type of documentation to show that you have successfully completed the sentence. This can usually be obtained from the court, police department, or probation office, in the area where you were arrested.

Collecting all of these documents can be a time consuming process, especially if you do not live in the area that you were arrested in. The courts mail out your file, if you pay a copying fee. However, this can often take weeks to months, so give your self plenty of time.

If you have been arrested or convicted of serious crimes, such as violent crimes, homicides, drug trafficking, terrorism, etc, it is advisable to consult an attorney before you file your petition/application.

Submitting Evidence/Documents

When submitting a petition or application, it is often necessary to submit evidence/documents in support of your petition or application. Commonly needed documents include birth certificates, marriage licenses, divorce decrees, death certificates, criminal history records, bank statements, tax returns, etc.

Failure to provide the necessary evidence/documents can result in significant delay of your petition/application, and can ultimately lead to its denial. If you failed to provide the necessary evidence/documents, upon your initial filing, generally, you will “Request for Evidence” (or RFE) will be sent to you. The RFE will often not allow you a whole lot of time to gather the necessary evidence/documents. If you do not provide the necessary evidence/documents pursuant to the RFE, your petition or application will almost certainly be denied. To make sure that your petition or application is approved timely, it is important that you submit the right evidence/documents when you initially file your petition or application.

The types of evidence/documents that you need to submit depends on the type of petition or application you are filing (for example, if you are filing for a fiance’/j visa, and you and/or fiancé has been previously married, you will need to submit divorce decrees to prove that you and your fiancé are both currently single). Before filing out the petition or application, be sure to READ THE INSTRUCTIONS on the petition or application. The instructions will tell you the types of documents that you need to submit. If you do not have the instructions for a particular form, go to link .

If you are unable to obtain the evidence/document required by the USCIS, the instructions sometimes allow for “secondary evidence”. What is allowed for secondary evidence depends on the particular petition or application, and should be stated in the instructions. If you are still unable to get secondary evidence, you should provide a brief explanation as to why you can not obtain the necessary documents. This explanation is best done through a letter.

When submitting documents, it is always a good idea to submit certified copies (ie documents containing original official governmental seals, stamps, signatures, etc.) If you are submitting an original document, one for which you would like back, a form G-588 “Request for Return of Original Documents” should also be submitted.

If you are submitting evidence/documents which are in a language other than English, make sure that you have them translated. The translated documents should be accompanied by a certification from the translator that the translation is accurate.

Finally, make sure you make a copy of everything you submit for yourself.

Keeping Good Records

If you are filing immigration petitions/applications without an attorney, there is one crucial mistake that most people make. That is that they don't keep a copy of the application they send in. This includes a copy of all the supporting documents that you send in.

The USCIS (or any other governing body) is a huge bureaucracy, and often lose or misplace petitions/applications/documents that are sent to them. Sometimes, they will claim that you did not send them a particular document and subsequently delay or deny your application. This delay can be create a great deal of hardship to the petitioner. Trying to get a copy of your application/petition/documents back from USCIS can often be frustrating and sometimes impossible. For example, if USCIS asks for additional information, they will only give you 30 days to respond. The likelihood that you can request and receive a copy of your original application within the 30 days, and allow you time to craft an appropriate response, is slim. While an extension of time is possible, it is not guaranteed.

When USCIS sends the petitioner a request for [additional] documents, the petitioner is often confused about what has been previously submitted, or if the USCIS asks for a document that has already been submitted, the petitioner has to go through to the effort/time/expenses of "re-obtaining" the documents, since no copy was kept. Further, often the USCIS will question a petitioner's answers to a petition/application. Without a copy of the petition/application submitted, most petitioners have forgotten their answers. Further, having a copy of the petition/application will also help an attorney understand your case and provide a record for an appeal, if your petition/application is later denied.

Important things to have a copy of:
1. your application/petition
2. any supporting documents sent in with your application/petition
3. copies of certified mail return receipts (you should always use certified mail or some other traceable method, so that you have proof of WHEN your petition/application was sent in, in case the USCIS questions your petition/application for timeliness).
4. all letters/corespondences between you and USCIS.

James C. Tai
jtai@hortai.com

Candor and Thoroughness in the Immigration Process

The most important thing to remember when filing an immigration petition or application is candor and thoroughness. Failure to do so may result in delay or the ultimate denial of your application. It is crucial that you disclose ALL of the information, that USCIS is asking for. Besides simple disclosure, it is also important to explain as thoroughly as possible. For example, if they USCIS asks about your criminal history, it is critical that you disclose EVERY arrest or incident, no matter what the outcome of the incident was. If your case was dismissed, sealed, expunged, etc., be sure to include that in your explaination. It is also advisable that you attach applicable documents to your application, which provides proof to the statements you are making.

A major critieria in the immigration process is the USCIS's "perception" of the truthfulness of the applicant. Whether this preception is true or not, it is what they will be basing thier decision on. If you provide them any reason to believe that you are less than truthful in your application, they can deny it solely based on on that. Although most ommissions of information are not intentional, having to explain those mistakes later can be quite burdensome.

It is imperative that an applicant thoroughly reviews his/her application before submission. Once it is submitted, can retractions or oral modifications (at interviews) can be construed as not be truthful.

James C. Tai
jtai@hortai.com
www.hortai.com