Q & A May 1, 2005

Q & A 1. 2.

Q&A 1.

Apply for Naturalization with Two Crimes?

Mr. Nian reader asks:

I live in the US and have green card for 7 years. I’m thinking to apply for naturalization. However, 7 years ago, I committed larceny crimes twice. The first time, the court released me without incarceration because it was my first offense. Within 4 months, I committed the same crime again and was jailed for 2 days. Questions:
1. Will immigration check my past criminal history?
2. Will my past criminal records be cleared if I did not commit any crime in 5 years?
3. Is it proper to report in the naturalization form only the second crime in which I was jailed for 2 days and omitting the first one in which I was not jailed?
4. Will immigration revoke my green card?
5. What should I do to obtain my naturalization?

Mr. Lee Answers:

1 An N-400 naturalization form asks for all information concerning past arrests and convictions. The U.S.C.I.S. as a matter of course conducts security clearances on all naturalization applications prior to interview and will most likely come up with your records of arrest and conviction.

2 Whether a state law allows minor crimes to be cleared after a certain number of years has no effect upon the U.S.C.I.S. demand that all arrests and convictions be put down on the N-400 application even if they have been expunged.

3 No. The U.S.C.I.S. requires that you report all arrests and convictions and not just the second. Kindly note that if you were fingerprinted in connection with your first arrest, that arrest will most likely come up on the records checks of the U.S.C.I.S.

4 Under the immigration laws, an individual who has been convicted of two crimes involving moral turpitude (which includes larceny) which did not arise from a single scheme of criminal misconduct, regardless of whether or not imprisoned, is removable from the U.S. You may, however, be able to defend your permanent residence card by requesting a waiver of removal before an immigration court if you have qualifying relatives in the U.S. and are able to prove that it would cause exceptional hardship to them if you are forced to leave the U.S..

5 In your situation and given the present state of the law, it is difficult to recommend that you apply for citizenship. You should also be aware that you may encounter difficulty re-entering the country if you take a trip outside the U.S. as the Department of Homeland Security has greatly enhanced the ability of its immigration inspectors to look at the criminal records of all arrivals to this country.

Q&A 2.

Liability of V-Petitioner Where Divorces & Ex-husband Enters U.S. Anyway?

Ms. Meng Reader asks:

I applied for my husband who lived in China for a green card. Due to the waiting time was long, I later applied a V-visa for him. However, while the case was pending in Guangzhou consulate and he was waiting for V-visa, we got divorced. Prior divorcing him, I wrote a letter to NVC informing my intention of canceling this case and provided with the receipt number. After divorcing, I was told my ex-husband has come to the U.S. through my V-visa application. I checked online using the receipt number and found the same case status as before. Questions:
1. Did it mean my case was never cancelled? How should I cancel my application?
2. Do I have any responsibility for my ex-husband that now he is here in the U.S?
3. We have been divorced less than 2 years. I am now a US citizen. If I get married again, can I apply for current husband?

Mr. Lee Answers:

1 If the divorce is finalized prior to the ex-husband's entry to the U.S. under the V-1 visa, his entry was unlawful. If that is the case, your petition for him was obviously not cancelled on time if it was cancelled at all. To cancel your petition, I suggest you put down all information concerning the circumstances along with identifying numbers of the case and a copy of your divorce paper and mail certified copies to the U.S.C.I.S. office that approved the petition.

2 In the fact situation that you have given above, you should have no liability for your ex-husband's presence if the U.S.C.I.S. believes that you made efforts to apprise the government that you were divorced and that you asked for the petition to be canceled Nevertheless, even without taking any steps, it is difficult to see that you have any liability unless the government proves that you conspired to allow him to illegally enter the U.S.

3 If you are married again and apply for your husband, questions may unfortunately arise as to your actions pertaining to your former spouse. There may be suspicion that you were somehow involved in an enterprise with him to evade the immigration laws. It may therefore be a good idea to take steps now which may insulate you from such possible suspicions.


Copyright © 2003 - 2005 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.