Effect of arrest on visa status
Have you ever been arrested or convicted for any offense or crime?
You may have noticed this question on the U.S. nonimmigrant visa application form. It is not a pleasant topic to discuss, but if you ever find yourself involved with the authorities, you need to be aware of the potential impact it may have on your next visa application. It is very important that you answer this question honestly. If you have been arrested, you should contact an attorney for assistance. The information on this page is very general and should not be considered a substitute for advice from a qualified legal professional about your individual situation. You will find a link to some immigration attorneys below.
When am I required to answer “yes”?
It is important to answer “yes” to this question if you were ever arrested or convicted of a crime, even if the charges were dropped or you were acquitted. You will have an opportunity to provide additional details about the arrest and the outcome.
How do I know if I was officially arrested?
If you are arrested by the police in the U.S., the officer must recite your “Miranda rights” to you. You’ve probably heard these on U.S. television shows. They include the lines “You have the right to remain silent,” and “You have the right to consult an attorney.”
Is being arrested the same as being charged with a crime?
No. Normally a person is charged with a crime after being arrested. This is a formal process during which you’ll be shown an indictment (the offense with which you are being charged) and the court officer will explain what law/s you have violated. It is possible to be arrested and released without ever being charged. If this happens, you must still answer “yes” on the visa application question.
How do I know if I have been convicted?
If you are never charged with a crime, you cannot be convicted. If you are charged with a crime, but the charges were dropped, you cannot be convicted unless new charges are filed later. If you are brought before a court and plead guilty or are found guilty, then you have been convicted.
If you ever find yourself charged with a crime, we recommend that you find two attorneys--one that specializes in immigration law and one that specializes in criminal law. Without the guidance of the immigration attorney, a criminal attorney may not understand the legal impact of his or her advice on your visa status. It is important to have the right kind of attorney to help you understand the court proceedings and what they mean for your individual situation.
Will an arrest or conviction prevent me from getting a visa in the future?
Visas are granted at the discretion of the individual visa officer. Depending on the severity of the crime, a conviction may make it difficult or impossible for you to get a visa to enter the U.S. For advice about your specific case, you will need to contact an immigration attorney.
Will an arrest or conviction cause me to lose my visa status while in the U.S.?
IUPUI is required by regulation to report, within 21 days, “any disciplinary action taken by the school against the student as a result of the student being convicted of a crime.” This reporting action by itself does not automatically result in a termination of status. However, the information will be available to Immigration and Customs Enforcement (ICE) agents, who will determine whether additional action is warranted. Additionally, if the disciplinary action is suspension or expulsion, this may result in a loss of status for not maintaining full-time enrollment.
An arrest or conviction that does not result in a disciplinary action by IUPUI may still be reported by law enforcement officials to ICE; in which case, ICE officials would have the same discretion to determine whether additional action is warranted.
Will embassy staff know if I have had an arrest or conviction if I do not provide that information on the visa application?
Yes, they will most likely have access to this information through other sources. You should never give a false answer to this question on the visa application or in the visa interview. Providing false information on a visa application or during an interview could result in a finding of fraud. A finding of fraud could result in a permanent bar from entering the U.S.
Can an arrest or conviction affect any other types of immigration applications?
You should assume that any application you file for an immigration benefit will involve a check for any arrest or criminal history. Extensive databases are maintained at the national level and are available to immigration authorities. You should consult with an immigration attorney about any history of arrest or conviction that may be of concern.
Is it possible my visa is already cancelled?
Yes. It is possible that your current U.S. visa stamp could be cancelled, especially if you have a "Driving Under the Influence" (DUI) or "Driving While Intoxicated" (DWI) arrest or conviction. Please note, even if you aren't arrested, it is possible this information is available to the U.S. Consulate abroad and they may cancel your valid visa stamp currently on file. This could prevent you from re-entering the U.S. after travel abroad and/or successfully applying for a new visa stamp in the future.
Will the Department of Homeland Security contact me if my visa is cancelled?
Possibly, but maybe not. We have had reports that email or telephone communications are being used as soon as a few days after an arrest or conviction informing non-immigrants that their visa has been cancelled.
What does it mean if my visa is cancelled?
Typically, if your visa stamp itself has been cancelled but your status remains valid and unexpired, a visa cancellation does not disrupt your period of stay in the U.S. unless you leave the U.S. If you depart the U.S., you must reapply for a new visa stamp.
If you have drug or alcohol related arrests/convictions, you could be referred to a Panel Physician in your home country (or country of application) for evaluation during your visa interview. This physician will make a determinationon if you are an "abuser or addict" and/or if you present a danger to yourself or others. It is possible that you can be required to stay at home for a year or more seeking treatment in order to be considered for another visa stamp.
You should only travel if you understand and are willing to risk not being able to return to the U.S. for an extended period of time. You may also want to retain an immigration attorney with details specific to your case.
If you determine you need to consult with an immigration attorney, we recommend searching for an immigration attorney affiliated with the American Immigration Lawyers Association, or AILA. AILA is a national association of attorneys and law professors who practice and teach immigration law.
In addition, you can review the American Civil Liberties Union, or ACLU's brochure describing how to "Know Your Rights When Encountering Law Enforcement."
