Unlike previous versions, the current version of the I-765 application for work authorization specifically asks about arrests. Under question number 23, which pertains to those who are applying under eligibility categories (c)(35) or (c)(36), the form asks: “have you EVER been arrested for and/or convicted of any crime?” (c)(35) relates to a Principal Beneficiary of an Approved Employment-based Immigrant Petition Facing Compelling Circumstances; and (c)(36) is for Spouses or Unmarried Children of a Principal Beneficiary of an Approved Employment-based Immigrant Petition.
If the applicant has ever been arrested or convicted, he or she is instructed to furnish the relevant documentation. For both categories, the instructions specifically note that conviction of a felony or two or more misdemeanors will disqualify the individual from work authorization. Moreover, it notes that USCIS reserves the right, in its own discretion, to deny any application if the applicant has been arrested or convicted of any crime. This seems to imply that a conviction is not necessarily required to be denied a work permit. So, to illustrate, an applicant who has not been convicted of a felony or two misdemeanors but arrested several times for serious offenses may, in theory, still be denied.
Interestingly, while the arrests/convictions question appears only to apply to categories (c)(35) and (c)(36), criminal issues presumably are relevant and affect all applicants. Students applying for their initial OPT or STEM OPT may also, for example, be denied work authorization by USCIS “as a matter of discretion” depending on the nature and circumstances of their criminal incidents. If USCIS discovers that a student has been arrested or charged with a criminal offense, it will likely issue an “RFE” (Request for Evidence) requesting that documentation regarding the arrest and its ultimate disposition be furnished, usually in the form of arrest reports, certified court dispositions and sentencing documents. Given that conviction of crimes involving moral turpitude, controlled substance offenses, and aggravated felonies (among the many grounds of deportability) can possibly render an individual removable, individuals with criminal records would be prudent to consult with immigration counsel prior to submitting an application for a work permit. While employment authorization is understandably important, an individual must balance the need to work against jeopardizing one’s status and potential exposure to removal proceedings.
For more information on this very complicated subject, please contact our office for a confidential consultation. The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship, nor should it be relied upon as advice in lieu of consultation with an attorney.