Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
At Burning Man a few years ago, I was arrested and charged with a misdemeanor for smoking marijuana in public (in my car) and driving under the influence.
I currently have a green card and want to apply for U.S. citizenship next year.
Can I? If so, how should I handle my criminal record?
— Remorseful About the Reefer
As you’ve discovered, you have to be extra careful when you’re an immigrant: Obviously, you should never break the law, but as an immigrant, if you do, it can have severe and lasting consequences.
You even need to be careful to avoid doing things that an immigration officer might consider to be outside the bounds of good moral character, even if they are not crimes. All immigrants should remember that even though limited use of marijuana for recreational and medical uses is legal in several states, it’s illegal under federal law.
My law partner, Anita Koumriqian, recently podcasted on how various crimes can impact your green card status and affect your ability to become a U.S. citizen. Take a listen and (always in this situation) consult an experienced immigration attorney. Tell your attorney about your DUI and marijuana charges, any subsequent marijuana use, any other arrests or citations, and even things you might consider minor such as speeding, parking or jaywalking tickets. An immigration attorney can determine whether you should proceed with applying for U.S. citizenship and if so, when and how to do so.
What is good moral character?
As you know, you must be a permanent resident (green card holder) for at least five years — or three years if you have a green card through marriage — to be eligible to apply for U.S. citizenship. Additionally, you must demonstrate “good moral character” during the five- or three-year statutory period.
Good moral character is defined as having the qualities that measure up to the standards of the community in which you reside. In practice, that means the definition of good moral character in California can be interpreted differently than by immigration officers in Texas. Ultimately, though, it’s up to the U.S. Citizenship and Immigration Services (USCIS) officer who is evaluating your case to make that determination. Some of the things that call your good moral character into question include convictions on your record, theft, fraud, intentionally hurting someone, or lying on your application or to an immigration officer.
Green card holders convicted of violating federal law relating to marijuana or who are drug abusers or addicts can be deported. In that situation, a risk is that if you apply for U.S. citizenship, USCIS could deny your application and take steps to deport you. However, assuming your arrest at Burning Man was your first and only offense, no one was injured and you were not charged with possessing more than 30 grams of marijuana, that incident would likely not trigger deportation or jeopardize your citizenship application as long as you served your time, completed your probation and paid any fines. However, you must confirm this with an immigration attorney because everybody’s situation is different.
Make sure to disclose your arrest
While your arrest at Burning Man may not derail your citizenship application, if you do choose to file the N-400 with an immigration attorney, your attorney might advise you that it’s still best to wait to apply for citizenship until at least five years have passed since your arrest or since your probationary period — if any — ended to demonstrate a clean record during the statutory period. (The statutory period might be shorter in some circumstances.)
Keep in mind that failing to disclose your arrest could also be detrimental to your case, so it’s important to proceed being represented by an expert attorney and with caution, fully knowing the risks involved.
When applying for citizenship, you should remember that lying on your application or during an interview is grounds for denial, deportation or having your citizenship revoked if the lie is discovered later. Ignorance of the law is no excuse. If you proceed, your lawyer may advise you that you should be forthcoming about your criminal record and the circumstances surrounding your arrest. Your immigration attorney can work with you on how to phrase and disclose the information truthfully. It will also be important to demonstrate that except for this one incident, you have demonstrated good moral character.
Be prepared: As part of the application process, USCIS will collect your biometric information — fingerprints and photo — and will do a background check on you by running your fingerprints, photo and all the names you have used through local, state, federal and international databases. USCIS officials can see even those convictions that have been officially expunged from your record.
Another cautionary tale
Somebody was in the United States on a student visa. This person was stopped by a police officer on the way to visit a friend at Google. The individual saw a Google bicycle — which the company makes available to its employees — in the neighborhood, far from any Google office, and hopped on and rode off to meet a friend at the Google campus and return the bike to Google. Before this individual could get there, they were stopped by the police, who issued a citation for bike theft, which could have led to deportation. Thankfully, we were able to lay out the negative immigration implications to the prosecutor and the criminal defense attorney was able to negotiate a plea deal, enabling this individual to avoid deportation.
Moral of the story: You need to be careful about everything you do as an immigrant! Even if you think you’re being helpful by returning a bike.
Hopefully, you won’t ever find yourself in this situation or be arrested again, but if you do, contact both a criminal defense attorney and your immigration attorney so they can work together to help you avoid deportation and preserve your ability to become a U.S. citizen.
Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.
The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!