All posts by Cheng, Cho, & Yee, Immigration Lawyers

Applying for U.S. Residency With a DUI

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Applying for U.S. residency with a DUI can add complications to the process. An immigrant that is charged with a DUI offense may face additional legal consequences in addition to driver’s license revocation and criminal penalties. The legal process following a DUI arrest can be daunting, but there are ways for immigrants to avoid hurting their visa status.

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How a DUI Arrest Affects Immigrant Status

In some cases, a DUI arrest, charge, and conviction can negatively impact an immigrant’s visa status in the U.S. Upon arrest, police will take fingerprints and photographs of the suspect, which then go into the national database. This data will be in the system permanently, and it will appear whenever an immigrant applies for benefits such as visa renewal, naturalization, and work authorization.

If you want to apply for U.S. residency, you will need to report a charge, arrest, conviction, fine, indictment, or imprisonment for driving under the influence (DUI) or other similar criminal charges. While you might be afraid of applying for U.S. residency with a DUI because of potential consequences, you may still be able to gain residency status with a criminal record. 

If you have a DUI on your record and you want to apply for U.S. residency, there are some important things to know during the application process.

What Is a DUI?

A driving under the influence (DUI) offense involves a driver who operates a vehicle while under the influence of alcohol or drugs. In most cases, you could face a DUI charge if you operate a vehicle with a blood alcohol content (BAC) level of 0.08% or higher. This BAC level indicates that your blood contains 0.08% alcohol, which has the ability to severely impair your judgment and driving ability.

DUIs could also result from the use of other types of drugs, including illegal and legal drugs. Even if a person is only taking prescription drugs, these drugs could lead to a DUI conviction if the driver is impaired because of them and operates a vehicle. 

In any case, a DUI is a relatively serious crime and can count as a felony or misdemeanor, depending on the nature of the crime.

Does a DUI Affect Immigration Status?

While some crimes may not prevent you from changing your immigration status in the U.S. and gaining residency, others are more serious and could keep you from getting a green card or another form of documentation when adjusting your immigration status.

The short answer is that, yes, a DUI can negatively affect your immigration status, but it depends on the specific circumstances. For example, if your DUI is a first-time offense, and you don’t have any additional charges such as manslaughter that make this an aggravated DUI, you shouldn’t see too much of an impact on your immigration status. 

However, certain situations may warrant the denial of your application and could lead to more serious consequences. Specifically, convictions of crimes of moral turpitude could hurt your chances of gaining residency and citizenship within the U.S. because of their particularly serious nature.

What Is a Criminal Conviction for Immigration Purposes?

Before you can understand how a DUI might impact your immigration status, it’s important to understand what a criminal conviction is and how it relates to immigration law.

If someone is convicted of a crime, this means that the court has deemed a defendant guilty of the crime or that the defendant has admitted guilt in the crime. In some instances, it could also mean that the individual has simply refused to plead guilty or not guilty of a crime. A criminal conviction comes with certain types of consequences, which could include jail time, prison sentences, fines, and other forms of punishment.

Regardless of what your state’s definition of a conviction is, federal immigration law’s definition takes precedence. This means that even if you don’t need to serve a sentence for a criminal conviction, you will still have a conviction under federal U.S. law if your criminal status falls under its definition. 

If you receive a conviction of a crime of moral turpitude, this could have a significant effect on your immigration status and limit your ability to gain permanent residency.

Crimes of Moral Turpitude

Convictions of crimes of moral turpitude can come with serious consequences for perpetrators. If people convicted of these types of crimes attempt to apply for an adjustment of immigration status in the United States, U.S. Citizenship and Immigration Services (USCIS) may deny their applications. In fact, in more extreme cases, these convictions may warrant deportation.

There are several types of crimes that fall under “crimes of moral turpitude” according to U.S. law, although there are no strict definitions for particular crimes. Some examples of these convictions include:

  • The majority of sex offenses
  • Offenses involving defrauding or stealing
  • Offenses involving reckless behavior resulting in serious bodily harm to victims
  • Offenses involving intentional acts such as attempted murder that result in bodily harm to victims

If someone has committed and received a conviction for any of these acts, USCIS may opt to not only deny an application for an adjustment of status, but the agency may also cite this conviction as a reason to deport the applicant.

Can a DUI Conviction Prevent Me from Getting a Green Card?

When applying for U.S. residency with a DUI, you might wonder, “Will the DUI affect immigration status?” You may also wonder more specifically, “Will my DUI affect green card applications?” 

Ordinarily, DUI convictions won’t necessarily have any effect on your green card or immigration status. A DUI and citizenship aren’t necessarily tethered to each other. However, if your DUI involved any type of crime of moral turpitude, it could negatively impact your status. 

In most cases, a DUI doesn’t count as a crime of moral turpitude because of the lack of intent behind it. You may not be aware that you’re unfit to drive and choose to operate a vehicle without any intent to cause harm to individuals. Your conviction may also lack various aggravating factors such as driving without a license, driving recklessly, getting a DUI with a record of previous offenses, or using illegal substances.

However, if you do operate a vehicle while under the influence and you’re guilty of an aggravated DUI or another separate offense involving a crime of moral turpitude, USCIS may not grant you residency and deem you inadmissible.

According to most states, a DUI offense falls under the definition of a simple or aggravated offense, which won’t lead the U.S. government to label you “inadmissible” or deny your green card. 

Determining an Applicant’s Moral Character

When USCIS reviews your application, one step the agency will take is to determine if you are of good moral character. If you have good moral character according to USCIS, this indicates that you wish to gain residency in the U.S. on good faith and are likely to help contribute to the progression of society in the U.S. However, if USCIS determines that you are of poor moral character, this could hurt your chances to gaining admission into the U.S.

In determining moral character, USCIS doesn’t simply look at your charges and criminal conviction. The agency will also decide whether your criminal record shows that you have good moral character. 

For example, USCIS may find that you aren’t of good moral character if you have committed aggravated felonies in the past, have a reputation as someone who drinks to the point of drunkenness, or have over 180 days of incarceration behind you.

Applying for U.S. Residency with a DUI or Reckless Driving Charge

If you’re worried about a DUI and immigration consequences, you typically won’t need to worry about this offense affecting the green card application process. The steps for applying for U.S. residency will normally be the same as when you apply without a conviction.

The following is the immigration process you can expect when applying for U.S. residency with a DUI or reckless driving charge:

1. Determine Eligibility

The first step before applying will be to gauge eligibility. If you have not committed a crime of moral turpitude or otherwise have a criminal record that USCIS may interpret as a demonstration of poor moral character, your DUI or reckless driving offense shouldn’t have too much of an effect on eligibility.

Of course, you will also need to meet all other criteria to be eligible to apply for U.S. residency. For example, you may qualify for a green card if you have family members who can sponsor you or if you have a potential employer sponsor. You may also be able to gain entry into the U.S. as a refugee or otherwise want to request asylee status. Additionally, you may be eligible for immigration to the U.S. if you fall under other immigrant categories that qualify.

2. Determine Which Process for Your Application

The next steps you take to apply for U.S. residency will depend on whether you’re currently in the U.S. or outside of the U.S. If you have received a DUI while in the U.S., you would apply for Adjustment of Status, which would entail filing Form I-485, Application to Register Permanent Residence or Adjust Status. You would file this form with USCIS.

On the other hand, if you are outside of the U.S. and wish to apply for a green card, you will need to go through consular processing via the U.S. Department of State (DOS).

3. Applying for Your Green Card

The next part of the application process will involve actually applying for your green card. This typically involves the following steps: 

  • A sponsor such as a family member files an immigrant petition on your behalf, but you may be able to do this on your own in certain situations.
  • Upon approval of the petition, you can then file a visa application through the DOS or a green card application through USCIS.
  • USCIS or the DOS will require you to submit biometric data such as photos for facial identification and recognition along with fingerprints and an identifying signature.
  • USCIS conducts an interview with you to further gauge eligibility for approval. At this interview, you would disclose a DUI or another conviction, charge, arrest, or another action revolving around an alleged crime or conviction. USCIS can then determine whether these details will impact your application and its approval or denial.
  • USCIS makes a decision and notifies you of this decision. 

Renewing a Green Card With a DUI Conviction

In addition to struggling to apply for a green card with a DUI on your record, you may struggle to renew your documentation. The same step will apply to renewing a green card as when applying for a new green card. You must report this conviction to USCIS, at which point the agency will begin to determine whether your record demonstrates good moral character. 

To show that you have good moral character, you may be able to show how your life has improved and the steps you’ve taken to change following the initial crime and conviction.

When the Offender of a DUI is in the Country Unlawfully

If someone is in the country illegally, the individual won’t face deportation for a DUI. Instead, his or her unlawful presence in the U.S. would put him or her at risk of deportation in these cases. The arresting officers and police department would likely find out that the arrestee is undocumented when looking into the arrestee’s records and processing him or her.

Waivers for Inadmissibility After a DUI

If USCIS deems someone inadmissible because of a DUI or another offense that doesn’t involve a crime of moral turpitude, immediate family members of the offender may be able to access a limited waiver to help stop removal proceedings in these instances. However, individuals submitting this waiver must be able to prove that the offender would undergo extreme hardship if inadmissibility, removal, or deportation were to take place. For example, the individual may face unjust persecution if he or she returned to his or her country of origin, which may help keep the individual in the country.

How an Immigration Lawyer May Help

If you or a loved one has a DUI and believe this could affect immigration status, hiring an immigration lawyer may be in your best interest. A DUI immigration lawyer can help determine what options are available to you in your case, including whether your DUI conviction could affect your ability to gain admissibility and citizenship in the U.S.

A deportation defense attorney may also be able to help defend you if you face deportation because of an offense involving a crime of moral turpitude. These attorneys provide immigrants with representation to build a case that may help prevent the client’s removal and deportation, potentially by proving that the case didn’t involve a crime of moral turpitude or that the individual hasn’t demonstrated a lack of good moral character as a result of his or her conviction.

In addition, an immigration lawyer may be able to provide various other services if you or a loved one need assistance with the immigration process.

Determine How a DUI Could Affect Your Case

In the event of a DUI arrest, charge, or conviction, it’s important to know how this may affect your case. Often, a DUI won’t necessarily impact your ability to receive a green card and gain residency in the U.S. On the other hand, a DUI with aggravating factors and other crimes could indicate to USCIS that you don’t have good moral character, which could not only prevent you from gaining residency but could also lead you to face removal and deportation. 

An attorney may be able to work with you to determine the influence on the success of your case when applying for U.S. residency with a DUI.

Understanding the Deportation Process

The deportation process is long and consists of several steps. The process generally starts with an arrest and detainment followed by hearings and ultimately deportation. Understanding what to expect during the deportation process and when to contact an immigration lawyer can help immigrants avoid getting deported.

Starting with an Arrest

If a person is suspected of having entered the U.S. illegally, federal or local law enforcement may arrest the immigrant before transferring the person to U.S. Immigration and Customs Enforcement (ICE). Agents who have the authority to arrest individuals include local police officers, U.S. Border Patrol agents, or ICE agents. 

Expedited Removal for Illegal Entry

If it’s determined that a person entered the country illegally or overstayed a visa, the immigrant may undergo deportation via the expedited removal process. While it’s impossible to appeal expedited removal orders, it may be possible to prove that the order was issued improperly and request the government’s dismissal of it. 

Expedited removal is reserved for individuals who are arrested within 100 miles of U.S. borders and have been living in the U.S. for 14 days or less.

Notices to Appear and Detainment

If expedited removal isn’t warranted, the arrested individual will begin removal proceedings with the court. ICE provides individuals with a Notice to Appear in proceedings that details the specific reasons why the federal government believes the individual is an unauthorized entrant.

If ICE decides to remove an individual, the agency may also detain the person at an immigration detention center or a contracted prison. From there, the agency will determine whether a person qualifies for bond or release based on a safety and security risk assessment.

Hearings

Before deportation, individuals will go through a series of hearings. These start with a bond hearing in which a judge sets a dollar amount for the bond, followed by a master calendar hearing to determine how the case should proceed. Finally, a merits hearing takes place in which individuals can argue why they should stay in the U.S. as legal immigrants.

Order of Removal and Deportation

Judges can issue an order of removal after the merits hearing, which individuals will have the chance to appeal to the Board of Immigration Appeals if they believe the decision is in error. If a person is deported, the method and route of deportation will depend on the individual’s country of origin.

The Evolution of the Immigration and Nationality Act

Over the years, the Immigration and Nationality Act (INA) has served as the main immigration statute that Congress enacts at the federal level. This statute has evolved in many ways. Various changes have affected the INA since its introduction, but it remains the basic body of immigration law in use today.

What Is the Immigration and Nationality Act?

Congress enacts almost all immigration statutes, one of which is the INA, which started in 1952. Before the INA, several statutes were behind immigration law in the U.S. but were not centralized in a single statute. Through the McCarran-Walter bill of 1952, also known as Public Law No. 82-414, existing provisions were codified and collected, ultimately helping to restructure immigration law. 

The INA consists of various titles, chapters, and sections. The act is a standalone body of law, but it also appears in the United States Code (U.S.C.) as Title 8, which refers to “Aliens and Nationality” among 50 other titles. When looking in the INA along with other statutes, individuals are likely to see references to Title 8.

There have been several amendments to the act since 1952 as it’s evolved, which involved adding or changing specific wording within sections as opposed to rewriting the law or entire sections of it. In amending the INA, lawmakers created Operation Instructions (IOs) and Interpretations to help clarify the statute and regulations’ provisions.

Immigration Before the INA

1790 saw the first law to determine who could become a citizen of the United States. At the time, this was limited to free white citizens who exemplified “good moral character” and had lived in the U.S. for a minimum of two years. By 1870, this law had extended to the African-American population.

Beginning in 1875, certain restrictions developed around immigration, including various bans on people with contagious diseases, criminals, anarchists, importers of prostitutes, polygamists, and beggars. Eventually, restrictions on Asian immigrants arose, starting with limited migration from China and leading to bans on immigrants from a majority of Asian nations.

At the beginning of the 20th century, the nation’s influx of immigrants began to shift from northern and western Europe to southern and eastern Europe. As a result, new laws came along in 1921 and 1924 in an attempt to push a return to immigration from northern and western European countries. These laws aimed to achieve this by putting into place a cap on the total number of immigrants permitted entry into the country every year, along with specific quotas according to European nationality.

How the INA Began

Immigration restrictions started to falter around 1943 after Chinese immigrants were allowed to enter the country in limited numbers. By 1952 with the introduction of the INA, a person’s race was beginning to become less of a factor contributing to exclusion for immigrants. In 1952, the act may have created opportunities for Asian immigrants that were symbolic in nature, but Asian immigrants still saw certain restrictions that discriminated against them.

While each Asian country was allowed 100 visas every year and Asian immigrants were allowed to undergo nationalization, there were still restrictions based on race as opposed to nationality. Anyone with one or more Asian parents counted toward the quota of his or her parent’s nationality, even if the immigrant was a citizen of another nation.

Then in 1965, the INA officially established a system that favored skilled immigrants and family reunification, effectively rendering country quotas obsolete. Additionally, new restrictions were introduced for immigrants coming in from the Western Hemisphere, which led to a higher number of Asian and Latin American immigrants compared to European immigrants.

Focusing on Refugees

Following the changes that the INA brought, more U.S. laws have come along to focus on refugees. This began with granting entry for Indochinese refugees seeking asylum in the 1970s and would eventually extend to Haitian, Nicaraguan, and Chinese refugees. 

In 1990, a new law introduced “temporary protective status,” which has helped protect immigrants from Central American and other nations from deportation to nations experiencing certain conflicts, natural disasters, and other harmful conditions.

In 2012, President Obama broke a pattern of immigration laws focused on border control throughout the ’90s and ’00s when he introduced the Deferred Action for Childhood Arrivals (DACA). This program aimed to allow young immigrants, or Dreamers, who had come into the country illegally to seek relief from deportation, allowing them to legally work in the country.

As more changes to immigration laws continue to take place, the INA remains one of the biggest influences in today’s immigration policies. Since its introduction in 1952, the nation saw a gradual shift away from policies built around race and an increased movement toward family reunification and attracting skilled immigrants.

Does the Exchange Visitor Two-Year Home-Country Physical Presence Requirement Apply to You?

When applying for a J-1 Exchange Visitor visa, one key issue is determining whether a two-year home-country physical residence requirement applies. However, this requirement will apply to exchange visitors under certain conditions.

What Exactly Is the Two-Year Physical Presence Requirement?

The two-year home residency requirement prevents individuals coming to the U.S. on J-1 visas from becoming permanent U.S. residents, changing their status in the U.S., or receiving family or work visas until they’ve returned to their home country for a minimum of two cumulative years. 

When Does the Requirement Apply?

The two-year home-country physical presence requirement may apply to individuals in J-1 status if:

  • Individuals and their families receive funding from their home government, the U.S. government, or an international organization for the purpose of enrolling in the J-1 program.
  • The individual studied or worked in any field appearing on the “skills list,” which lists fields of specialized skills and knowledge that the applicant’s home country requires for its development. Countries with a large number of skills on the list include India, China, and South Korea.
  • The applicant was involved in a U.S. graduate medical training program under the Educational Commission for Foreign Medical Graduates’ sponsorship.

If individuals are unsure of whether the physical presence requirement applies to them, they can consult with their adviser. It’s also possible to request “advisory opinions” from the U.S. Department of State, which entails an official determination of whether the requirement applies.

Some people may also need to meet this requirement multiple times. This usually occurs if individuals wish to change their J-1 status to a different category, such as a J-1 Student transitioning to a J-1 Scholar. On the other hand, applicants may have the chance to meet these requirements concurrently.

Avoiding the Requirement

Even if it’s determined that an individual must meet the physical presence requirement, it may be possible to avoid it by requesting a waiver. Specifically, applicants have the option of requesting a “letter of no objection” from their native country’s embassy located in Washington, D.C. One main exception would be people who receive funding from the U.S. government for the J-1 program, which makes it extremely difficult to have the requirement waived.

Keeping these aspects in mind, people entering the country on a J-1 visa will be able to determine if they need to meet this requirement before entering.

Understanding the Visa Waiver Program [infographic]

People who wish to travel to the U.S. without the need to obtain a visa may qualify for the Visa Waiver Program (VWP). Through this program, individuals visiting the country for business or tourism purposes for periods of 90 days or less may be able to enter without a visa. The following is a guide to this program, including the various requirements for qualification.

Infographic explaining the Visa Waiver Program.

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Understanding the Visa Waiver Program

What Are the Requirements for the VWP?

To qualify for the VWP, applicants must be visiting the U.S. for purposes that a visitor (B) visa permits. For example, applicants could be entering the country for business or tourism. Business purposes may include negotiating contracts, consulting with associates, or attending training or events related to the applicant’s occupation. Meanwhile, tourism could entail vacationing, visiting family or friends, or seeking medical treatment, among other intentions.

Applicants also need to be either a national or a citizen of a VWP-designated country. These countries include Andorra, Australia, Hungary, Iceland, Italy, and many others. The U.S. Department of State’s website has a full list of qualifying countries, along with other details about the VWP.

Obtaining an ESTA

For individuals to enter the country without a permit through the VWP, they need to receive authorization via the Electronic System for Travel Authorization (ESTA) before they can board a U.S.-destined air or sea carrier. U.S. Customs and Border Protection (CBP) operates this online system to determine who is eligible to travel to the country through the VWP.

ESTAs are valid for two years, after which time individuals will need to renew them. Visitors to the U.S. will also need to acquire a new ESTA if they have either:

  • Changed their name
  • Received a new passport of any kind
  • Changed their gender
  • Changed their country of citizenship
  • Changed any answers to “yes” or “no” questions appearing on the ESTA application

Valid Passports

In addition to an ESTA, applicants will need a passport that will be valid for a minimum of six months after they have left the U.S. Each member of a visitor’s family will require his or her own passport. E-passports are also required, which feature embedded electronic chips that can match the passport to the visitor. 

If a visitor meets each of these requirements, he or she may be able to enter the country under the VWP and avoid the need to obtain a visa.