All applicants seeking U.S. immigration benefits in the form of a visa, a U.S. green card or
asylum, must understand that if they had encounters with law enforcement when they were a
minor, they might be disclosed in a USCIS background check. Applicants usually always ask the
question, “Does the U.S. government care about your juvenile criminal record if you are hoping
to immigrate and get a U.S. green card?” In short, the answer is, “Yes.” In the course of
processing immigration related applications, U.S. Citizenship and Immigration Services (USCIS)
checks juvenile criminal records. An exception happens, however, in instances where the
records have been sealed.
U.S. Immigration Does Background Checks For Protection of U.S. National Security
USCIS holds a huge responsibility on their shoulders in protecting the U.S. borders and
ensuring the integrity of the immigration process. In order to successfully screen people who
might fraudulently seek immigration benefits, or who might seek to enter the U.S. for improper
or violent purposes, the agency conducts extensive security checks on everyone seeking an
immigration benefit or service. USCIS works hand in hand with the Federal Bureau of
Investigation (FBI) and other agencies to orchestrate these security checks.
Each type of application demands different levels of investigation. A person who attempts to
enter the U.S. and live as a permanent resident might require a more detailed security check
than someone applying for a nonimmigrant visa to come for a short visit. With that said, anyone
whose initial background check reveals something suspicious will be subjected to a more
thorough scrutiny and possibly an investigation.
The Manner in Which Records for a Juvenile Conviction are Handled in the U.S. Criminal
Court System
Juvenile hearings do not always result in convictions. While, in literal terms, a record may be
made of a juvenile’s hearing even if the hearing did not result in a conviction, there is no
“criminal record” if there are no convictions.
Occasionally, however, if a young person’s offense is so serious that the juvenile is charged and
convicted as an adult, in which case there will be a conviction on record. The juvenile may, in
such a situation, be allowed to have the record expunged after a specific period of time if they
do not commit any other offense. The length of time varies based on the seriousness of, and the
punishment for the crime. It is far more difficult to have an adult’s offense expunged than to
have a juvenile’s offense sealed.
Majority, of U.S. citizens can have their juvenile records sealed once they reach the age of 18.
Sealing a record essentially removes evidence of a juvenile conviction from all sources (court
records and public records). At that point, it is protected from viewing by USCIS.
How Does USCIS Treat Juvenile Convictions
USCIS will look back five years at juvenile records when considering an immigration application.
A juvenile offense remains in an individual’s record for five years (even if that five years goes
beyond the age of 18). This means that if an individual is charged with an offense at 17 years of
age, the record will be accessible until the person turns 22 years of age.
A juvenile conviction will not be typically considered after five years have passed unless the
person has committed another offense. However, if a juvenile is in removal proceedings while
still under the age of 18 or within the five year timeframe following the offense, the juvenile’s
records would not yet be sealed and would be available to USCIS. USCIS acknowledges that
juveniles make poor choices simply because of their youth, and minor offenses, including some
offenses of moral turpitude, may be excused by USCIS because juveniles do not have the same
moral compass and restraint as expected of adults.
There is also a petty offense exception for juvenile convictions, which means that a petty
offense committed by a juvenile should not, in and of itself, have a negative effect on an
immigration application. A petty offense is the legal term for particularly defined minor offenses.
For instance, a charge of shoplifting something of minimal value or minor vandalism would be
defined as a petty offense.
The Three Step Background Check USCIS Uses
One of the first steps USCIS uses in their security check is that they will conduct an initial name
check. Then it uses a database made up of information available to several different agencies
and compiled into one system. If there are any indicators for further investigation, the person’s
records will be searched further.
Second step used in the security check is the Federal Bureau Investigation (FBI) fingerprint
check. For a U.S. green card or U.S. naturalization, and select applications, the applicant will be
scheduled for a Biometrics appointment after having filed a visa application. Of course, if you
have never had fingerprints taken, the fingerprint will not show any records. In some juvenile
cases, fingerprints are not taken, or are sealed after time has passed without another offense.
Once the fingerprints are sealed there’s a high percentage that they might not be a part of the
FBI fingerprint records.
If the FBI finds a match after conducting a fingerprint check, it will send those criminal records to
USCIS. Any person who has ever been arrested and fingerprinted in the U.S. will appear in the
FBI security check (with the exception of juvenile fingerprints that were sealed).
Lastly, several cases are also subjected to an FBI name check, which is more extensive than
the initial name check. It is designed for tracking suspicious individuals who have not been
fingerprinted. The FBI keeps a system of names from not only criminal records but also from:
● Applications
● Personnel files
● Investigation files
● And other files organized by law enforcement agencies
It can take several weeks for the FBI to run its name check.
Check in With an Immigration Lawyer
If you have any criminal history or any previous arrests as a juvenile that may prompt an
extensive investigation on your background, it is important that you talk to an immigration
attorney. A lawyer will help you know your rights as well as help you put your history in the best
possible light to better your chances of a successful application. Your attorney can also advise
you of when your record is so serious that submitting a U.S. visa application at the time will only
get you into more problems. Contact Gambacorta Law Office at 847 443 9303 for a first free
consultation.
