International Students and Arrests
Have you ever been arrested or fingerprinted*?
Many of us are not comfortable with such a question. Although most of us will never be arrested in our entire lives, it does happen to some international students each year. Common misdemeanor or felony arrests can include theft, drunk driving, shoplifting (stealing goods from a store without paying for them) and drug possession (with or without intent to sell).
It is important to distinguish between the arrest and the judgment or resolution of the case. A person might be arrested and charged, but the case may be dismissed, the charges may be reduced, or you may only have to pay a fine or do community service instead of going to jail.
However, regardless of the outcome of the case, the arrest record will eventually find its way in the U.S. government’s federal databases, and will then appear in the record when someone applies for a U.S. visa or attempts to enter the United States. Sometimes fingerprints may also end up in a database, even without an arrest.
U.S. visa posts routinely perform what are known as criminal background checks on visa applicants. They use a computer program called the Consular Lookout and Support System (CLASS) to check names and visa eligibility of all visa and passport applicants. U.S. Citizenship and Immigration Services (USCIS) uses a similar database when deciding immigration applications.
Before the attacks of September 11, 2001, CLASS had 6.1 million records from various U.S. government agencies. Since September 11, the State Department has added millions more new records to its CLASS computer system, primarily FBI criminal history data that the FBI receives from local municipalities.
The U.S. visa application asks the following question:
Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action?
Some USCIS applications ask similar questions.
Thus, even if not convicted, you must still answer the question “yes” if you have been arrested. In such cases, it is essential that you have with you documents issued by the court that address the original charges, and the subsequent disposition of the case.
If you are entering the United States, you may be stopped by the Customs and Border Protection Officer at the inspection booth if the officer sees an arrest or fingerprint record reported in the database. That officer may take you to a separate interview area. As with the visa application, it is essential that you have with you documents issued by the court that address the original charges, and the subsequent disposition of the case. A letter from the lawyer who assisted you, that explains the charges and the judgment is also helpful.
Thus, any arrest, regardless of the outcome, may be something that you will carry with you for the rest of your life. Always obey the laws.
Anyone with concerns regarding the effect that a previous arrest may have on future US visa applications or US entries should consult a qualified immigration attorney. If you are being represented by a criminal attorney, there is a free legal service in New York State, run by the New York State Defenders Association NYSDA), where criminal attorneys can consult with a member of NYDSA if they have questions about the impact of immigration law on criminal proceedings for their client. You can contact NYDSA with questions as well. Their website is: http://www.nysda.org/index-3.html and their phone number is (518) 465-3524 The Office of International Student and Scholar Services can provide a referral to qualified immigration attorneys.
*In the context of this article “fingerprinting” does not refer to the routine fingerprint scans done by US visa posts as part of a visa application, or fingerprint scans performed at US ports of entry.
Prepared by Ellen H. Badger, Director
International Student and Scholar Services
Thanks to Stephen Yale Loehr of the law firm of Miller Mayer in Ithaca, New York for contributing to this article.