It can be challenging to secure permanent residency in the United States. The immigration journey is often long, complicated, and competitive. Even a minor mistake can lead to significant delays or a denial of your application.
Officials at United States Citizenship and Immigration Services (USCIS) can approve or reject applications based on factors such as your criminal record.
If you have past criminal charges or convictions, you might wonder if expungement could help you. Anyone with a criminal record can benefit from expungement under Penal Code Section 1203.4. This article explains how an expungement can help your immigration case.
DACA Recipients with California Convictions
DACA, or “Deferred Action for Childhood Arrivals,” offers legal status to some undocumented immigrants who came to the U.S. as children. These individuals are often referred to as Dreamers. DACA does not currently provide a path to citizenship, but DACA recipients can access various benefits, including:
- Protection from deportation if they obey the law
- Opportunities for higher education, including financial aid and scholarships
- Work authorization in the U.S., including professional licenses
- A Social Security number
- Status protection and the ability to renew their status
- Healthcare access
DACA status offers economic and social stability that illegal status cannot provide. However, DACA recipients must meet high behavior standards. Even a misdemeanor conviction can affect their ability to renew their status.
According to current USCIS rules, a felony conviction can disqualify someone from a DACA renewal. A serious misdemeanor, which could lead to jail time between five days and a year, may also disqualify a recipient if it involves:
- Drug-related offenses
- Domestic violence
- Sexual abuse
- Burglary
- Illegal firearm possession
- DUI
Any misdemeanor that results in a jail sentence of 90 days or more is classified as a serious misdemeanor.
For DACA recipients in California, expungement can help protect them from deportation and allow them to work legally. California has a favorable process for expunging criminal records. You can apply for expungement once you have satisfied all sentencing requirements, like fines, jail time, and probation. The first step is to file a motion under California Penal Code Section 1203.4.
Once the court expunge your record, you can regain many state benefits. However, renewing your DACA status becomes trickier. To successfully renew, even with an expunged record, you must provide proof of positive equity in your application. Positive equity shows that you are a valuable member of your community.
You can demonstrate this through community service, rehabilitation from past convictions, and strong links to the United States. Even with an expunged record, the USCIS has the final say on whether to approve your renewal.
Benefits For U.S. Naturalization Applicants
To become a U.S. citizen, applicants must prove they have “good moral character.” Certain crimes may reveal a lack of good moral character and cause the denial of your application. Crimes that could affect your chances include:
- Aggravated felonies—These include severe offenses like rape, murder, or drug trafficking. A conviction for an aggravated felony will almost certainly result in denial.
- Crimes of moral turpitude—This broad category includes offenses such as theft, fraud, or violence. A single crime of moral turpitude can affect your application, but multiple convictions are more likely to result in denial.
- Drug offenses—Drug-related convictions can affect your eligibility for citizenship. It includes possession, sale, or distribution of drugs. An exception exists for one conviction of simple possession of 30 grams or less of marijuana.
- Domestic violence or child abuse—The USCIS takes these crimes seriously. A conviction for child abuse, domestic violence, or violation of a protection order can result in a denial.
Crimes That May Not Affect Your Citizenship Application
Not all criminal convictions will bar you from becoming a U.S. citizen. Minor offenses like misdemeanors might not disqualify you. They may not count if they happened outside the “good moral character” period. They also might not matter if they do not show a pattern of bad behavior. For example:
- Traffic violations—Minor infractions, such as speeding tickets or parking violations, usually do not affect your citizenship application.
- Simple possession of marijuana—If the conviction involves possession of 30 grams or less of marijuana, it generally will not bar you from applying.
- Petty offenses include crimes with a maximum sentence of less than six months in jail. They may not disqualify you, especially if they happened only once.
Expunging a California conviction can help with naturalization. It shows “good moral character,” which is required to become a citizen.
Expungement can demonstrate that the applicant has not violated the standards for good moral character. In such cases, the expungement can highlight the steps the applicant took as part of their sentencing. The expungement also shows that any negative behavior before the statutory period did not carry over into that period.
I-601A Unlawful Presence Waivers
The I-601A Waiver is also called a provisional unlawful presence waiver. It helps people who are in the U.S. illegally. This waiver allows you to avoid penalties before your immigrant visa interview abroad. It also helps prevent the three—or ten—year bars that would prevent someone from re-entering the U.S. after processing abroad.
To qualify for an I-601A Waiver, you must meet specific rules. You need to show that your absence would cause extreme hardship. This hardship must affect a qualifying relative who is a U.S. citizen or permanent resident. However, the situation can be more complicated if you have a criminal record.
A criminal record does not automatically disqualify you from obtaining an I-601A Waiver but can make the process more difficult. The waiver focuses on unlawful presence, not criminal records. However, the nature and seriousness of the crime may influence your eligibility for the waiver.
If certain crimes make you inadmissible, you should apply for a different waiver, such as the I-601 waiver. This waiver addresses various inadmissibility issues, not just unlawful presence. For undocumented immigrants with ‘unlawful presence’ status, having an expunged conviction can help with an I-601A waiver application.
An expunged record is essential for an unlawful presence waiver. Applicants must show they deserve approval from the Attorney General. A conviction can hinder proving the “merit of discretion.” Expunging a conviction record is a small but essential step. It helps show USCIS that the applicant deserves the waiver and a green card.
American Citizens Seeking Second Citizenship or Residency
Americans, like immigrants, can benefit from a California expungement. Americans seeking a second citizenship can also benefit from expunging a California conviction. It shows that the offense is in their past. This record is also essential for expungement since you must complete all sentencing requirements for the sentence.
It proves to the foreign country’s reviewing agency that the applicant has made amends. Additionally, unlike in the U.S., some foreign nations do not view an expunged California conviction as a disqualifying factor for naturalization.
An expungement can help an American obtain dual citizenship. A solid legal opinion letter about the conviction and its expungement can also help. Some California convictions can block you from obtaining second citizenship, even if expunged. Each nation has immigration and naturalization laws, making these situations case-specific.
How Does Expungement Work in California?
Understanding expungement in California is important for anyone looking to move past the challenges of a criminal record. It offers a legal means to erase your record, which can be essential for starting fresh and enhancing your life.
California law allows expungement under Penal Code Section 1203.4. This process will enable you to ask the court to clear your records after you finish probation or your sentence. Expungement is essential for those with no criminal charges or pending warrants. It also applies to people who have completed all probation or sentence terms.
In California, eligibility for expungement is quite broad. It includes many offenses, especially misdemeanors and infractions. This approach also applies to certain low-level offenses that are no longer classified as criminal due to changes in the law. For example, some marijuana-related crimes are now eligible for expungement after decriminalization.
Penal Code Section 1203.4 (PC) allows people with misdemeanor and felony convictions to expunge their records. This rule applies if they have not served in state prison for those offenses. An essential requirement is that they have completed probation and follow all probation rules. It includes attending meetings, paying fines or restitution, completing community service or education programs, and not committing new crimes.
Under this section, individuals must petition the court to expunge a record. If the court approves the petition, the person can withdraw their guilty or no-contest plea. The court can also dismiss all the charges. This action lets the individual claim they have not faced conviction for the crime. It is beneficial when looking for a job, as many employers check criminal backgrounds.
The benefits of a successful expungement can be significant. It can significantly improve job opportunities since an expunged record usually results in a cleaner background check. It can also enhance the chances of finding housing, as landlords often check criminal histories. Additionally, it can create more educational opportunities and simplify obtaining professional licenses.
Expungement under Penal Code Section 1203.4 does not entirely erase the criminal record. It helps remove many obstacles and negative perceptions linked to a conviction. However, specific legal situations can still access the record and its dismissal. For example, the court may still consider the expunged conviction if the person faces new criminal charges.
What Records Can Immigration Access After Expungement?
A complete expungement clears your court records from state databases. It includes arrests, charges (even if dismissed), and cases where you face a conviction.
Immigration agencies aim to assess if you pose a risk to public safety or national security. Only specific crimes may hinder your chances of obtaining a visa or citizenship. They will also consider your age at the time of the offense and your behavior since then.
When Can Immigration Check Your Expunged Records?
Aside from applying for citizenship, there are many instances when immigration might conduct a background check and discover your expunged records.
Nonimmigrant Visas
Nonimmigrant visas include visitor and work visas. In the U.S., these are:
- B-1 visa: For business visitors
- H-1B visa: For workers in specific fields sponsored by a U.S. employer
- B-2 visa: For tourists
For B-1 and B-2 visas, immigration may not perform an extensive background check. They will likely uncover your expunged records during the H-1B visa application. Additionally, if you commit a crime while on any of these visas, they will check your record and may deport you.
Immigrant Visas and Naturalization
Immigrant visas, commonly known as green cards, allow you to permanently live and work in the U.S.. They are the first step toward becoming a citizen, but obtaining one can be challenging. You can usually obtain a green card by:
- Having a US citizen relative sponsor you, such as a spouse, parent, child, or sibling
- Gaining sponsorship from an employer, especially if you have special skills or an advanced degree
- Applying for a Diversity Visa, which offers a limited number of green cards to individuals from countries with low immigration
Naturalization is the process of becoming a citizen. You can typically apply for citizenship with Form N-400 after being a permanent resident for five or three years if you marry a U.S. citizen. Immigration authorities may review your criminal record, even if expunged. A criminal record could make you “inadmissible.”
Find an Experienced Immigration Attorney Near Me
During the immigration process, the USCIS can look into your criminal record, even if some records have been expunged. Expungement aims to give people a fresh start by allowing them to overcome their mistakes. However, it does not mean these records are completely deleted from public access. The federal government is among the few entities that can view an expunged record.
If you worry about how an expunged record might impact your immigration status, consult an immigration lawyer. An attorney can guide you through various options to help your immigration case. California Immigration Attorney has immigration lawyers available to support you throughout the process. Call us today at 424-789-8809 to schedule an appointment with us.