A criminal record can reduce your chances of obtaining a U.S. green card or visa or result in deportation. Therefore, expungement looks attractive. It involves the criminal judicial system deleting your criminal history and considering that you have never committed any crime.

However, immigration is different. Your expunged conviction will always exist. A seasoned lawyer can help enter the U.S. depending on the case’s facts, the nature of the offense, and your sentence.

What is an Expungement?

An expungement process involves petitioning the court to review your conviction, allowing you to withdraw your guilty plea and enter a new not-guilty plea, dismissing your original conviction. If successful in securing an expungement, you can honestly answer “No” if asked whether you have a previous conviction.

California PC 1203.4 expunges felonies and misdemeanors for defendants who did not serve time in state prison for the offenses committed. The crucial condition for qualifying for an expungement is completing your probation.

So what happens if you have completed your probation? You could request the court for an early probation release if you have served a year and eighteen months of your misdemeanor probation and felony probation, respectively.

Before filing your petition, your attorney could contact the prosecutor and explain why the prosecution should consider you for early probation termination. Before approving the early termination, the court will double-check that you have completed probationary terms, including:

  • You have attended the court-ordered programs. Based on the circumstances of the underlying crime, the court could require you to participate in drug abuse, anger management, or domestic violence sessions.
  • You have paid all fines.
  • You have paid restitution — The restitution payment helps the victim affected by your offense to treat any injuries sustained or cover for any other losses.

An expungement per PC 1203.4 does not completely erase your criminal record as though it never existed. While it removes the stigma and most restrictions connected to a conviction, the criminal conviction's record and subsequent dismissal are still accessible in some legal circumstances. For instance, the court could still review your expunged conviction if you face new criminal charges.

How to File For an Expungement

The five crucial steps when filing for this post-conviction relief include the following:

Enlist An Attorney

A knowledgeable defense lawyer with extensive knowledge of expungement procedures will help you assess whether you qualify for an expungement. They will also assist you in completing your application’s requirements.

Collect Necessary Information

Before you file for an expungement, you should collect detailed information regarding your case as follows:

  • Case number
  • Date of arrest or conviction
  • County of conviction or arrest
  • Specific code sections you violated

Accurate and comprehensive details are crucial for preparing to file an expungement petition. Your lawyer will assist you in gathering these details if you do not have them.

Filing Your Petition

Next, your attorney will prepare and file your expungement petition with the appropriate court. The petition should include all supporting documents that outline why your conviction should be dismissed. The supporting evidence can include completion of probation, rehabilitation, and compliance with court orders.

Court Review and Resolution

Following the filing of your petition, the judge will evaluate your case. They will consider all crucial factors, including the nature of your offense, your behavior from the time of your conviction, and if granting you the expungement serves the interests of justice.

When Can Immigration Agencies Consider Your Expunged Criminal Record?

The immigration agency, in most situations, can perform background checks on you to review your expunged record. They include the following:

Nonimmigrant Visas

Nonimmigrant visas comprise of work and visitor visas, including the following:

  • H-1B visa — Employees in specific fields funded by an American-based company
  • B-2 visa — Tourist visiting the country
  • B-1 visa — Business travelers visiting the country

Regarding B-2 and B-1, the immigration agencies might not perform thorough background checks. However, they will likely see the expunged criminal records in the immigration process. If you are in the United States on a visa of this nature and violate the law, the United States Citizenship and Immigration Services will check your records and deport you. You can avoid deportation by working with a seasoned and qualified immigration lawyer.

Naturalization and Immigrant Visas

A permanent resident or green card allows you to work and live permanently in America. While they are the initial step of becoming a citizen, they are not always easy to obtain. You can acquire a green card through:

  • The sponsorship of a family member who is a United States citizen
  • An application for a Diversity Visa that offers a few green cards to individuals from countries with minimal immigration rates
  • Using an employer

Naturalization involves applying for and, if accepted, becoming a citizen. You can bring Form N-400 for citizenship after you have been married to a United States citizen for three years or have had a permanent residency for 5 years.

The USCIS will consider your expunged criminal records for these processes. If you have previously violated the law, the immigration could consider you inadmissible.

Impact of Expungement on Inadmissibility

Being inadmissible implies that the immigration official could refuse you to enter America due to a condition in your past, even when you qualify to obtain your green card or visa.

The immigration law considers you inadmissible if you have previously been convicted of any of the below:

  • A crime involving moral turpitude (CIMT) — Courts define CIMT as a violation of the fundamental obligations owed to other people or an immoral, reprehensible, or depraved conduct.
  • Violation of any drug (controlled substance) law, whether it is in America or another country
  • Multiple convictions whose sentences added up to more than five years
  • Human trafficking
  • Prostitution
  • Money laundering
  • Kidnapping
  • Drug trafficking

Crimes You Can Acquire Your Waiver of Inadmissibility

If you have committed an offense that makes you inadmissible in United States, you should research whether the government can waive (excuse) it. It means that upon receiving the waiver application, immigration will overlook the offense and permit you to obtain your green card.

Not every crime is eligible for the waiver. You could apply for the waiver only when you were found guilty of any of the crimes below:

  • A CIMT, apart from torture and murder
  • Possession of less than 30 grams of marijuana
  • Illegal commercialized vice
  • Prostitution
  • Multiple convictions whose sentences added up to more than five years
  • A serious crime in a situation where you have contended immunity from the prosecutor, left America, and refused to submit to a United States court’s jurisdiction

If the offense on your criminal record is in the list above, you could apply for your waiver if any of the below applies to the case:

  • You violated the law fifteen years ago and can demonstrate that you have been rehabilitated and obtaining the green card will not affect the country’s security, safety, or national welfare
  • You are a child, parent, or spouse to a lawful permanent resident or citizen who can prove that denying the green card could result in extreme hardship.

Applying for Your Waiver for Your Immigrant Visa

You will require a waiver to enter America to obtain an immigrant visa or green card. The waiver is also known as an I-601 waiver. You can apply if you have a qualifying relative (a lawful permanent resident or citizen parent, child, or spouse). Your child should be unmarried and below 21 years old to be your qualifying relative. Additionally, you should prove that your qualifying relative could suffer extreme hardship if the immigrant denies your application. Standard areas of extreme hardship focus on financial, personal, educational, and health. The USCIS decides on a case-by-case basis.

To apply for your waiver, you should prepare Form I-601 alongside supporting documents and send them with fees to the relevant immigration agency.

There are numerous exemptions to the relevant fee requirement (you could request a waiver or exceptions for specific humanitarian categories).

You can send your waiver application at the same time as your immigrant visa or green card application or later. If you have researched or have sought legal representation, you might believe the immigration will consider you inadmissible. In this case, submitting the waiver request and other application materials is advisable to save you time.

You should also include documentation proving you are eligible for your waiver and reasons the immigration officials should grant you the waiver.

Applying for a waiver can be complicated. It goes beyond presenting facts; you must persuade the immigration office that you have been rehabilitated. It entails collecting documentation like doctor’s reports, probation officer’s statements, and personal affidavits. Consequently, it is wise to consult an experienced immigration lawyer.

If you are not in America, you should bring Form I-601 to the United States consulate or embassy where you apply for your immigrant visa. If you are in the U.S. and want to apply to adjust status, you should bring Form I-601 to the USCIS.

Applying for a Non-Immigrant Visa (Hranka Waiver)

To acquire your nonimmigrant waiver, you should verify to the United States government that your entry will not threaten the safety of citizens or the county. When filing your waiver application, you should address the criteria below:

  • The risk you would pose to America
  • The severity of your previous conviction(s)
  • The reason you wish to enter the county

The United States consulate in your home country should guide you on how to file your application. If the consulate commends the immigration to grant you the waiver, it will forward the application to the Admissibility Review Office. You can enter the U.S. after the ARO issues the waiver.

Disclosures of Expungements on Immigration Processes

In immigration applications, truthfulness is essential, and you should provide only accurate and honest information. You should fully disclose all past arrests, combined with those culminating in expunged records or dismissal of charges. Obtaining an expungement does not permit permanent residence applicants or those applying for any other immigration benefit to conceal their arrests, prosecutions, or criminal convictions.

Applicants must reveal all record expungements, even in programs like Global Entry. Otherwise, it could result in fines or denial of your immigration application. USCIS can evaluate an applicant’s behavior beyond the statutory moral character duration, including expunged past convictions.

Disclosing a past arrest or criminal conviction can be daunting, but failure to do so may result in even more severe repercussions. Lying or concealing information about your expunged records could attract denial of your immigration application or deportation.

Failure to reveal an expunged record can also lead to a denial of the naturalization process, potentially initiating removal hearings against you. Concealing expunged convictions attracts harsh consequences when assessing your good moral character. It makes disclosing all expunged records mandatory, including non-deportable crimes; they could impact your moral character assessments for permanent residence, citizenship, and other immigration benefits.

Immigration and Juvenile Records

The legal consequences of a juvenile criminal record can impact your adulthood, even in immigration applications. Underage criminal records are accessible to USCIS for 5 years following the violation, even if you turn 18 within those five years. Nevertheless, USCIS could overlook underage crimes, acknowledging that minors may make poor decisions influenced by their age and lack of maturity.

The law makes certain exceptions for petty crimes that result in juvenile convictions; the minor infractions you committed while a minor should not impact your immigration application. Nevertheless, it is crucial to consult a proven and knowledgeable immigration lawyer to help you navigate potential challenges during the application procedure.

Find a Skilled and Aggressive Immigration Lawyer Near Me

Applying for permanent resident status, citizenship, or a visa in the U.S. can be arduous. Immigration agencies dig deep into your background checks before determining your fate; criminal conduct and convictions can jeopardize your goal. That is why many opt for expungement. While the post-conviction relief gives you another opportunity by permitting you to move from your past, it does not mean the records are deleted from USCIS. If you are concerned about how your expunged records will impact your immigration status, do not allow your past to affect your future. Instead, contact the Orange County Immigration Attorney at 424-789-8809 and schedule your initial consultation. We can help you navigate the various options and methods to safeguard your stay or entry into the U.S.