Visa Renewal & Readmission to the U.S. with a Criminal History
Visa renewal abroad or otherwise traveling outside the United States is one of the surest ways for a noncitizen with a criminal record to end up in a bad situation. There are several unique disadvantages that apply only when a visa applicant or permanent resident departs the U.S. and seeks to return:
- Some convictions will make a noncitizen subject to removal only if he or she travels outside the United States. These convictions would not make the person removable if he or she did not leave the U.S.
- Travel abroad may result in removal for some crimes or suspicion of criminal conduct even if there is no conviction. This includes admissions to crimes of moral turpitude and reasonable suspicion of involvement in drug trafficking. On the other hand, usually an actual conviction is necessary to remove a lawful permanent resident (LPR) who has not left the U.S.
- Persons who are not permanent residents (and permanent residents too in some circumstances) must prove “clearly and beyond doubt” that a criminal matter does not make them inadmissible when returning from abroad. This is a very high burden of proof.
- A consular officer's decision on the admissibility of a visa applicant is generally not reviewable by a court in the United States. This is known as the doctrine of consular nonreviewability.
- U.S. Customs and Border Protection (CBP) will not allow a lawyer to be present while CBP officers question a noncitizen during primary or secondary inspection at the port of entry.
Due to these problems, we strongly recommend that noncitizens with an arrest record consult with an experienced immigration attorney before traveling outside of the United States. Scott Mossman has that experience and can review your record to evaluate whether traveling abroad would put you at risk of removal proceedings upon your return.
If you have a conviction that does not legally make you removable, Scott can provide you with a letter and supporting documentation to carry and present during inspection at the port of entry and also at the consulate if you need to apply for visa renewal (for example, to get a new H-1B, L-1, F-1, or other nonimmigrant visa stamp). The letter explains and documents why you are not ineligible for a visa or admission. In addition to the letter and supporting documentation, Scott will attach a signed Form G-28, Notice of Entry of Appearance as Attorney, which authorizes the consular officer or CBP officer to discuss your case with him.
Due to our location near San Francisco and Silicon Valley, we often provide this service to persons in the tech industry and their spouses. That means we have a lot of experience handling visa renewals for applicants with a criminal record at the U.S. consulates in India, China, and Taiwan.
Representation During the Inspection Process
Although CBP maintains there is no right to have an attorney present while it questions a noncitizen during primary or secondary inspection at the port of entry, an attorney with a preexisting relationship with the noncitizen (as shown by a Form G-28) may communicate with supervisory officers during the inspection process. It is essential to consult with and retain an attorney before you travel, though. Scott and most other attorneys will not have time to intervene immediately on behalf of someone detained at the airport.
If CBP cannot resolve a case at the port of entry, it may parole the noncitizen into the U.S. for deferred inspection, which generally occurs at a different location within 30 days after arrival. Unlike at the port of entry, CBP usually permits an attorney to appear with an applicant for admission at the deferred inspection office. Scott therefore can represent you in-person at the deferred inspection interview.