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 and scholars 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. International Student and
Scholar Services can provide a referral.
*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
Binghamton University (SUNY)
International Student and Scholar Services
August 2007
Thanks to Stephen Yale Loehr of the law firm of Miller Mayer in Ithaca, New York for contributing to this article.
