I have an arrest case which is dismissed. How long does the case stay on record. What can I do to get it off the record from an immigration perspective? I will be applying for H1-B stamping and green card and I do not want the arrest to affect me.
An arrest that was dismissed, in other words, not prosecuted will not adversely affect either your visa or green card application. Nevertheless, you must disclose it and have a certified court record to indicate that your case was dismissed. A dismissal is different from an expungement. The latter happens after a conviction and does not erase records for immigration purposes. If you are in doubt, consult an experienced immigration attorney who will review your record.
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For criminal law purposes, a person's criminal record can often be expunged, vacated or otherwise show rehabilitation. However, for immigration law purposes (such as being approved for a visa), the act can stay on your record indefinitely. An arrest and conviction, in fact, is not always required. Admitting committing a crime involving moral turpitude or admitting the essential elements which constitute the crime can all cause one to be inadmissible. Therefore, it is important that you show a copy of your court disposition to an experienced immigration attorney before filling out any immigration forms or seeking entry to the U.S. The article below may be useful.
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It will be on your record forever. Older and sometimes dismissed charges will have less of a negative impact than newer non dismissed ones.
This advice does not form an attorney-client relationship and is merely informative. It should not by itself be relied upon to address a legal concern.
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The most important thing may be to make sure that the dismissal did not result in a conviction for immigration purposes. If the state decided that you were not responsible and dismissed the case on their own, you should be ok, but if your case was dismissed as part of an agreement that required you to plead guilty and complete certain conditions, then it could still be considered a conviction for immigration purposes.
Having said that, an arrest alone will generally not affect you if you can show that the case was disposed of without a conviction. If that is the case, you will be in a stronger position by explaining what happened and showing that it does not affect your eligibility than by trying to hide it. The arrest itself may remain on federal databases even after an expungement, so you could still be questioned about it even if the state has destroyed or sealed any records.
Whenever immigration authorities ask if you have ever been arrested you need to answer truthfully that you have, even if a state judge or a criminal defense attorney told you that you do not have to disclose it - immigration law is different from state law, and you could get in more trouble for trying to hide an arrest than for disclosing it and explaining it. Good luck!
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