Will Immigration Officials Consider Your Juvenile Criminal Records?

If you're applying for U.S. immigration benefits (a visa, green card, asylum) encounters you had with law enforcement as a minor might come up in the USCIS background check.

Does the U.S. government care about your juvenile criminal record if you're hoping to immigrate and get a U.S. green card? The short answer is: Yes, in the course of processing immigration-related applications, U.S. Citizenship and Immigration Services (USCIS) checks juvenile criminal records. An exception occurs, however, in cases where the records have been sealed.

Purpose of Checking Juvenile Records: Protection of U.S. National Security

USCIS is charged with protecting U.S. borders and ensuring the integrity of the immigration process. In order to effectively screen out people who might seek immigration benefits fraudulently, or who might seek to enter the United States for improper or violent purposes, the agency conducts extensive security checks on everyone seeking an immigration benefit or service. USCIS works closely with the Federal Bureau of Investigation (FBI) and other agencies to carry out these security checks.

Different kinds of applications will require different levels of scrutiny. A person who seeks to come to the United States and live as a permanent resident might require a more comprehensive security check than someone applying for a nonimmigrant visa to come for a short visit. That said, anyone whose initial background check uncovers something suspicious will be subjected to more detailed scrutiny and possibly investigation.

How Records of Juvenile Convictions Are Handled in the U.S. Criminal Court System

Juvenile hearings do not always result in a conviction. While, in literal terms, a record may be made of a juvenile's hearing even if the hearing did not result in a conviction, there is no "criminal record" if there is no conviction.

Sometimes, however, a young person's offense is so serious that the juvenile is charged and convicted as an adult, in which case there will be a conviction on record. The juvenile may, in such a situation, be allowed to have the record expunged after a certain number of years if they commit no other offense. The length of time can vary based on the severity of, and punishment for the crime. It is far more difficult to have an adult offense expunged than to have a juvenile offense sealed.

Most U.S. citizens can have their juvenile records sealed once they reach the age of 18. Sealing a record essentially removes evidence of a juvenile conviction from all sources (court records and public records). At that point, it is shielded from viewing by USCIS.

How USCIS Treats Juvenile Convictions

USCIS will look back five years at juvenile records when considering an immigration application. A juvenile offense remains in an individual's record for five years (even if that five years goes beyond age 18). That means that if a person is charged with an offense at age 17 years, the record will be available until the person is 22, rather than for only one year, until he or she turns 18.

USCIS will typically not consider a juvenile conviction after five years has passed unless the person has committed another offense. However, if a juvenile is in removal proceedings while still under the age of 18 or within the five-year period following the offense, the juvenile's records would not yet be sealed and would be available to USCIS. USCIS recognizes that juveniles make bad choices simply because of their youth, and minor offenses, including some offenses of moral turpitude, may be excused by USCIS because juveniles do not have the same moral compass and restraint as expected of adults.

There is a also a petty offense exception for juvenile convictions, which means that a petty offense committed by a juvenile should not, in and of itself, have a negative impact on an application for immigration benefits. A petty offense is the legal term for specifically defined minor offenses. For example, a charge of shoplifting something of minimal value or minor vandalism would be defined as a petty offense.

USCIS's Three-Step Background Check

The first step in the security check that USCIS will conduct is a name check. It uses a database made up of information available to several different agencies and compiled into one system. If there is any indication of a need for further investigation, the person's records will be investigated further.

The next step in the security check is the FBI fingerprint check. For green card, naturalization, and some other applications, you will be called in to have your fingerprints and other "biometrics" taken at some point after submitting your application. Of course, if you have never had fingerprints taken, the fingerprint check won't show anything. In some juvenile cases, fingerprints are not taken, or are sealed after time has passed without another offense. If the fingerprints are sealed they might not be part of the FBI fingerprint records.

If the FBI finds a match when it does a fingerprint check, it will send the person's criminal history to USCIS. Any person who has ever been arrested and fingerprinted in the U.S. will appear in the FBI security check (with the exception of juvenile fingerprints that were sealed).

A few cases are also subjected to the FBI name check, which is more extensive than the initial name check. It is reserved for tracking suspicious people who have not been fingerprinted. The FBI maintains a system of names from not only criminal records but also from applications, personnel files, investigation files, and other files compiled by law enforcement. It can take a few weeks for the FBI to run its name check.

Full Disclosure in Immigration Applications Is Essential

Immigration applications require full disclosure of all arrests; even those that resulted in expunged records or charges dismissed. Anyone who has been arrested as a juvenile or otherwise should provide detailed information and any related documentation to prove to USCIS or the immigration court how the matter was resolved. Providing certified disposition records can help avoid delays in the security check.

Anyone who does not fully disclose a criminal history risks losing credibility with USCIS, which can only hurt the chance of a successful application. An applicant is far better off providing information about a juvenile offense and, if relevant to the type of application, explaining why it occurred, what the applicant learned from it, and perhaps why the offense is not an indicator of who the applicant is today. An applicant who can explain any juvenile charges before USCIS even finds anything in the record has the opportunity to describe and frame the circumstances of the incident rather than relying on the record to do so.

See a Lawyer

If you have any criminal history or even activities that could trigger a more extensive investigation of your background, it is essential to speak with an experienced immigration attorney. The attorney can help you understand your rights as well as help you put your history in the best possible light to better your chances of a successful application. The attorney can also warn you of when your record is so serious that submitting an application for immigration benefits at the time will only get you into more trouble.

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