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Applying for US citizenship with a criminal record

Posted by attorney Daniel Shanfield

If you've ever been arrested for any reason, you should seriously consider consulting with an experienced immigration lawyer before applying for US citizenship. This is a very complicated area of U.S. immigration law. Not only could USCIS turn down your citizenship application; you could risk deportation by bringing your criminal history to USCIS’s attention.

Before we discuss the criminal issues in naturalization cases, let’s go over the naturalization application form and the interview process.

Applying for US citizenship is done by completing Form N-400, which can be obtained for free from the USCIS website. The application must be completed properly and submitted to the appropriate address with the correct fee, this information is also available at the USCIS website. If the N-400 application is not done right, USCIS will reject it. The Form N-400 itself is 10 pages long and asks for detailed information about your immigration, residence, employment, and criminal history. Take your time with the application and make sure all answers are correct.

The N-400 also asks for details about your family relationships and your marital history. This is used by USCIS to help determine if you or any of your relatives obtained residency improperly or by fraud.

At the end of the form, there is a signature page where you swear under penalty of law that you have provided true and correct information in the application. Intentionally lying on the form can lead to denial of the application and possible criminal prosecution.

Once the application is filed, USCIS will send out a receipt notice, generally within 30 days. USCIS will then send out a biometrics instruction letter for you to appear at a local application support center for fingerprints and photographs. USCIS uses this information to obtain your criminal rap sheet to see if you've had any prior criminal or immigration violations.

At San Francisco USCIS, San Jose USCIS, and Sacramento USCIS, a naturalization interview will be scheduled approximately 5 months after the N-400 receipt date. You have the right to bring an immigration attorney with you to the interview, and we have assisted numerous immigrants at these interviews obtain their U.S. citizenship.

It’s at the naturalization interview where USCIS will go over the information provided on the N-400 form, and administer the U.S. civics and history test.The officer will ask questions about the applicant’s criminal and immigration history, based on the application form and USCIS’s own FBI background checks.

The officer can sometimes give a decision that same day on granting the application, but will frequently say that more time is needed to review the application, even in straightforward cases. Once the application is granted, you will receive a notice in the mail to appear for your citizenship swear-in ceremony. That is where you formally receive your US citizenship and a certificate of naturalization, and can register to vote and apply for a US passport.

So now let's discuss the requirements for naturalization.

In general, you may qualify for naturalization if prior to filing the N-400 application you:

  • Have been a permanent resident for the prior five years
  • Have 30 out of 60 months presence in the U.S.
  • Had no interruptions of residence beyond 6 months
  • Had good moral character during the 5 year period
  • Have resided in your USCIS district for the previous 90 days
  • Can show sufficient knowledge of US history and civics.

You may also qualify for naturalization if prior to filing the citizenship application you:

  • Had your green card for at least three years
  • Have been married to a USC citizen for at least 3 years
  • Can show 15 out of 30 months presence in the U.S.
  • Had no interruptions of residence beyond 6 months
  • Had good moral character
  • Have resided in your USCIS district for the previous 90 days
  • Can show sufficient knowledge of US history and civics.

There are easier requirements if you've served in the U.S. Armed Forces.

Now let’s turn to good moral character and crimes.

To naturalize, you must show good moral character for the 3 or 5 year period (depending on whether or not you are married to a US citizen) prior to application for naturalization and swearing in. This is called the “statutory period".

The burden is on you to be honest and to show good moral character. Many clients ask “how will they know if I don’t tell them?" Believe me, thanks to its extensive computerized databases, DHS will almost certainly know. Even if they don’t know, ICE should eventually figure it out. Also, in being truthful, it is your obligation to submit all conviction records with the citizenship application. Submitting these documents is best done with the help of an experienced immigration lawyer, who can obtain the right kind of court records and present damaging evidence in the best light possible.

What conduct during the statutory period will keep an applicant from proving good moral character?

  • First, “crimes involving moral turpitude", which are offenses that involve harming other people or damaging property, theft and fraud crimes, as well as sex or family crimes, committed during the statutory period.

  • Second, controlled substance violations committed during the statutory period.

  • Third, imprisonment for 180 days or more during the statutory period.

  • Fourth, providing false testimony during the statutory period to obtain an immigration benefit.

  • Fifth, involvement during the statutory period with prostitution.

  • Sixth, serious unlawful gambling offenses committed during the statutory period.

Please note that USCIS may not approve your citizenship case if you have filed the naturalization application while on probation or parole.

Furthermore, USCIS may also deny good moral character for bad acts during the statutory period not on this list. This conduct might include failure to provide child support and failure to pay taxes. If you have divorced during the statutory period or have a formal or informal child custody agreement, you might be affected by these issues. If so, you’ll want to clear this up before applying for US citizenship.

Now, let’s turn to issues of misconduct impacting good moral character prior to the 3 or 5 year statutory period.

Certain offenses before the statutory period count heavily against naturalization, with some crimes so serious that you may never be able to show good moral character, and therefore never naturalize. Many of these offense could also get you deported, so it's essential to review your case with an attorney before applying for US citizenship.

First, naturalization applicants are disqualified from showing good moral character if convicted of murder or other crimes committed on or after 11/29/1990 that are categorized as “aggravated felonies".

Aggravated felonies include: drug trafficking, kidnapping, fraud crimes with loss over $10,000, crimes of violence or theft crimes with a sentence of one year or more, child pornography, and perjury or forgery offenses with a sentence of one year or more. Aggravated felonies will almost always lead DHS to file immigration charges against you and begin deportation proceedings.

In assessing your good moral character, USCIS can also look at bad acts before the statutory period, if during the current 3 or 5 year period period you haven’t shown rehabilitation, or if the past bad acts somehow relate to the Applicant’s current moral character. Evidence of good works can really help here, including proof of volunteer activity, charitable giving, alcohol and drug sobriety, and marriage reconciliation in domestic violence cases.

As I've said if you have any crimes or arrests on your record you should with an experienced immigration attorney. Applying for US citizenship when you have a criminal record can lead to being placed in deportation proceedings. That's why it's critical to have a lawyer advise you on the risks are so you can make an informed decision. However, you may still have an opportunity to get your citizenship.

The information is for general information purposes only. Nothing on this page should be taken as legal advice for any individual case or situation. Each legal case is different, and the cases described herein do not constitute a prediction or guarantee of success or failure in any other case. This information is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.

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