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How Do Criminal Charges or Arrest Affect H1 Stamping?

| May 20, 2019 | Criminal Law & Municipal Court, Deportation |

In an earlier article, we briefly discussed the impact of a drunk driving allegation on an individual’s H-1b stamp or visa. Matters become even more complicated when the charges are criminal in nature. If one has been arrested or charged with a criminal offense-whether misdemeanor or felony-the issue becomes even more precarious. Being charged or worse, convicted, of a criminal offense poses a potential problem of admissibility for the foreign national, especially in the context of an H-1b specialty worker without a visa who has already left the United States. Since he/she will have to apply for a visa to re-enter, the charges will have to be addressed during the visa application process. If a consular officer determines that conviction of a charge constitutes a crime involving moral turpitude (“CIMT”) or worse, an aggravated felony, the individual will be refused a visa unless the ground of inadmissibility can be overcome. In some cases, a conviction is not even necessary. Under current US immigration law, if an individual admits to having committed or admits to having committed acts that form the essential elements of 1) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or 2) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21) is inadmissible.

Even if an individual already has an H-1b visa in his/her passport prior to departing the US, readmission after having committed a criminal offense can be problematic. In most cases, the criminal record will generate a “hit” upon the inspection process at a port of entry, where the individual will most likely be referred for secondary inspection. During the secondary inspection process, the Customs and Border Protection officer will question the applicant about the incident and ask to see relevant court paperwork including but not limited to certified disposition records. After examining the documents, a decision will be made as to whether the individual is admissible or inadmissible. Depending on that determination, an individual may or may not be referred for further immigration court proceedings.

Given the ramifications, it is critical that H-1B workers thoroughly evaluate the effect of any criminal charges prior to departure from the United States, whether or not one already has a visa. The visa will by itself not guarantee entry or readmission if there is conduct that has triggered a criminal basis of inadmissibility.

The above is general information only and not intended to serve as a substitute for legal advice.  If you need legal advice, please consult with an attorney to discuss your specific situation.  

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