Arrest or Criminal Charge While I-485 Is Pending
A new arrest, citation or criminal charge while Form I-485 is pending should be evaluated immediately. An arrest alone does not automatically establish criminal inadmissibility, but the underlying offense, plea, conviction, admission of conduct or other facts can affect INA §212 eligibility. USCIS can also consider reliable evidence of criminal conduct when exercising adjustment discretion, even where a charge is dismissed or does not independently create a statutory inadmissibility ground.
What should I do if I am arrested while Form I-485 is pending?
A plea that appears minor under state law can have severe immigration consequences. Immigration analysis should occur before a plea or diversion agreement is finalized whenever possible.
An arrest is not the same as a conviction
INA §101(a)(48)(A) supplies the federal immigration definition of a conviction.
An arrest by itself does not establish:
- A criminal conviction;
- A crime involving moral turpitude;
- A controlled-substance conviction;
- Multiple-conviction inadmissibility; or
- Every other criminal ground of inadmissibility.
Some inadmissibility grounds do not require a conviction, and criminal conduct can also be relevant to adjustment discretion.
Crime involving moral turpitude
INA §212(a)(2)(A)(i)(I) can apply when an applicant:
- Has been convicted of a crime involving moral turpitude; or
- Validly admits committing acts constituting the essential elements of such a crime under the immigration-law admission standard.
The analysis depends heavily on:
- Exact statute;
- Statutory elements;
- Divisibility;
- Record of conviction;
- Sentence;
- Potential petty-offense exception; and
- Other statutory exceptions.
Controlled-substance offenses
Drug-related criminal cases require special caution.
Potential immigration grounds include:
- Controlled-substance conviction under INA §212(a)(2)(A)(i)(II);
- Admission of qualifying controlled-substance conduct;
- Drug-trafficking reason-to-believe inadmissibility under INA §212(a)(2)(C); and
- Medical drug-abuse or addiction issues under INA §212(a)(1) in appropriate cases.
INA §212(a)(2)(C) uses a reason-to-believe standard and can therefore create a serious problem even where a prosecution does not produce a conviction.
Multiple convictions
INA §212(a)(2)(B) can apply to an applicant convicted of two or more offenses where the aggregate sentences to confinement meet the statutory threshold.
The crimes do not necessarily need to involve moral turpitude.
Therefore, a new conviction should be analyzed together with the applicant's complete prior record rather than in isolation.
Other conduct-based grounds
Some inadmissibility grounds focus on conduct rather than requiring an ordinary criminal conviction.
Depending on the facts, USCIS can examine:
- Drug trafficking;
- Prostitution-related conduct;
- Commercialized vice;
- Human trafficking;
- Money laundering;
- Security and terrorism grounds;
- Alien smuggling; and
- Other statutory provisions.
A state prosecutor's decision not to pursue a case does not necessarily determine whether a separate federal immigration ground applies.
Pending charges can delay adjustment adjudication
USCIS may be unwilling to make a final adjustment decision while a significant criminal charge remains unresolved.
The agency may:
- Issue an RFE;
- Issue a NOID;
- Request certified records;
- Request police reports where relevant;
- Interview the applicant;
- Hold adjudication while the criminal case develops; or
- Make a decision based on the evidence available where legally appropriate.
There is no universal rule that USCIS must wait for every state criminal proceeding to finish.
Obtain certified court records
For each arrest or charge, obtain the strongest available official record.
This can include:
- Charging document;
- Complaint or information;
- Indictment;
- Plea agreement;
- Plea transcript where important;
- Judgment;
- Sentencing order;
- Probation order;
- Certified disposition;
- Diversion agreement;
- Dismissal order;
- Vacatur order; and
- Evidence of sentence completion.
USCIS may consider a police report in appropriate circumstances, but the court record is essential to determining whether a conviction exists and what offense produced it.
Police reports and discretion
USCIS and the Board have recognized that reliable police reports and arrest information can be considered in discretionary immigration adjudication even when no conviction resulted, subject to fairness and evidentiary weight.
The applicant may need to address:
- Accuracy of the police report;
- Whether allegations were corroborated;
- Reason charges were dismissed;
- Whether the applicant admitted conduct;
- Passage of time;
- Rehabilitation;
- Victim-related evidence;
- Other favorable equities; and
- Whether the report is reliable enough to deserve weight.
Adjustment is generally discretionary. The applicant may need to rebut or mitigate reliable evidence of serious conduct even if statutory criminal inadmissibility is not established.
Do not rely on expungement alone
State-law expungement does not necessarily eliminate a conviction for immigration purposes.
Immigration analysis should identify:
- Original plea or finding;
- Original sentence;
- Reason for later expungement;
- Whether the judgment was vacated for a substantive or procedural defect;
- Whether the action was rehabilitative; and
- Federal immigration treatment of the state procedure.
The applicant should disclose the record when the immigration form asks about arrests or convictions even if state law permits the person to describe the matter differently in another context.
Diversion can still produce an immigration conviction
A diversionary disposition can constitute a conviction under INA §101(a)(48)(A) if:
- The applicant entered a guilty or no-contest plea, admitted sufficient facts, or a judge found guilt; and
- The court imposed some punishment, penalty or restraint on liberty.
Review what happened before the dismissal. The federal immigration definition can treat a diversion as a conviction even when state law later dismisses the charge.
A new arrest should be disclosed at the I-485 interview
The officer can update Form I-485 under oath at interview.
The applicant should be prepared to disclose:
- Date of arrest;
- Arresting agency;
- Charge;
- Court;
- Current case status;
- Disposition if completed;
- Sentence or conditions; and
- Any additional relevant facts USCIS asks about.
If the applicant answered “No” when Form I-485 was filed but a later arrest occurred, the answer should be updated truthfully.
Criminal plea negotiations should consider immigration consequences
Before entering a plea, criminal counsel should understand:
- Current immigration status;
- Adjustment category;
- Prior criminal record;
- Exact immigration ground at risk;
- Potential waiver;
- Maximum possible sentence;
- Actual sentence;
- Alternative statutes or pleas; and
- Effect on discretion.
Small changes in statutory subsection, plea language or sentencing structure can materially alter immigration consequences.
Travel after a new arrest
An applicant should reassess international travel after an arrest or charge.
Potential issues include:
- Whether a criminal ground of inadmissibility may apply;
- Whether a visa remains usable;
- Whether CBP may question the applicant;
- Whether advance parole is sufficient for the planned return;
- Whether unlawful presence creates a separate problem;
- Whether a pending criminal case restricts travel; and
- Whether departure violates bond or court conditions.
EAD consequences
A criminal arrest does not automatically cancel a valid C09 EAD.
However:
- Form I-485 can ultimately be denied;
- C09 eligibility depends on the pending adjustment application;
- Some offenses can affect other immigration statuses;
- Detention can interrupt employment; and
- A final I-485 denial can affect continued adjustment-based employment authorization.
Waivers
Some criminal inadmissibility grounds can be waived in qualifying cases.
Potential provisions include:
- INA §212(h);
- Refugee or asylee adjustment waivers;
- T or U adjustment waiver provisions;
- VAWA-related provisions; and
- Other category-specific statutory relief.
Do not concede inadmissibility and file a waiver merely because an arrest occurred. Determine the exact immigration consequence first.
Example: charge dismissed without plea
An applicant is arrested for a misdemeanor, never enters a plea, and the prosecutor dismisses the charge. There may be no immigration conviction, but USCIS can still ask about the incident and consider reliable evidence of the underlying conduct in discretionary adjudication. The applicant should obtain the certified dismissal and be prepared to address the facts accurately.
Example: diversion after guilty plea
An applicant pleads guilty, is ordered to complete classes and probation, and the state later dismisses the charge after successful diversion. The later dismissal does not necessarily eliminate the immigration conviction because the original disposition may satisfy INA §101(a)(48)(A).
New-arrest checklist
- Do not enter a plea before immigration analysis where possible.
- Obtain charging document.
- Obtain certified disposition.
- Obtain plea and sentencing records.
- Review prior criminal history.
- Analyze INA §101(a)(48)(A).
- Analyze CIMT grounds.
- Analyze controlled-substance grounds.
- Analyze INA §212(a)(2)(C).
- Analyze multiple convictions.
- Analyze other conduct-based grounds.
- Review petty-offense exception.
- Review available waivers.
- Analyze discretionary effect.
- Update USCIS truthfully.
- Review international travel.
- Bring updated records to interview.
Common criminal-case mistakes
“It Was Dismissed”
The applicant assumes a dismissal conclusively resolves immigration consequences without examining the plea and sentence.
Pleading Before Immigration Review
A seemingly favorable state disposition creates a severe federal immigration consequence.
Hiding the Arrest
A new criminal issue becomes a credibility or misrepresentation problem because the applicant fails to update USCIS.
Ignoring Conduct-Based Grounds
The applicant assumes no conviction means no inadmissibility under any provision.
Ignoring Discretion
The applicant proves no statutory criminal bar but does not address serious underlying conduct USCIS may consider negatively.
Traveling Without Reanalysis
The applicant uses advance parole after a new arrest without considering port-of-entry or inadmissibility risk.
Primary authorities
Related INA245.com guides
Frequently asked questions
Does an arrest automatically make me inadmissible?
No. The immigration consequence depends on the statute, disposition, conduct and applicable inadmissibility ground.
What if the charge is dismissed?
A dismissal can mean there is no conviction, but prior pleas, diversion and underlying conduct must still be analyzed.
Can USCIS consider an arrest without conviction?
Yes in discretionary adjudication where the evidence is reliable and relevant, although the weight depends on the circumstances.
Should I tell USCIS about an arrest after filing?
Yes when USCIS asks for updated criminal information, including at interview. The applicant should not knowingly repeat an outdated answer.
Can a diversion count as a conviction?
Yes if the disposition satisfies the federal immigration definition in INA §101(a)(48)(A).
Should I travel on advance parole after an arrest?
Obtain individualized analysis first. A new arrest can affect admissibility, CBP inspection and the broader adjustment case.
A new criminal case should be analyzed before the plea, not after the immigration consequence becomes fixed.
The Messersmith Law Firm, P.A. represents adjustment applicants in matters involving arrests, criminal charges, CIMTs, controlled substances, diversion, INA §212(h), discretion, RFEs, NOIDs and Form I-485 denials.
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