1 1. Invoke Your Right to Remain Silent (5th Amendment)
You generally have the right to remain silent when questioned by law enforcement. Clearly state that you are choosing to remain silent and ask for a lawyer before answering substantive questions. Do not lie or provide false documents or statements.
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2 2. Request Criminal Defense Counsel and Immigration-Consequences Advice
If you are charged with a crime, ask for a criminal defense lawyer and make sure the lawyer addresses the immigration consequences of any plea or conviction. A criminal defense lawyer does not necessarily need to be an immigration lawyer, but immigration consequences should be identified before accepting a plea.
3 3. Ask About Consular Notification
Foreign nationals who are arrested or detained in the United States must be advised of the option to have their consulate notified. For nationals of certain countries and jurisdictions, U.S. authorities must notify the consulate without delay regardless of the person’s wishes.
4 4. Understand the Difference Between Visa Revocation and Immigration Status
A visa is a travel document used to seek admission to the United States; it is not the same thing as the person’s period of authorized stay or immigration status inside the United States. The Department of State can revoke a nonimmigrant visa in specified circumstances, including a specific DUI prudential-revocation procedure.
Arrest, Conviction, Visa and Immigration Status: What Is Different?
These concepts should not be treated as interchangeable. An arrestmeans a person has been taken into custody or otherwise arrested; it is not the same as a conviction. A criminal conviction may create an immigration ground only when the offense and disposition satisfy the applicable immigration statute. A visa is a travel document used to seek admission, while the person's authorized stay after admission is generally reflected in the admission record, including Form I-94.
Criminal cases can nevertheless affect a non-citizen before conviction. For example, the Department of State has a specific prudential-revocation procedure for qualifying DUI records, and alcohol-related arrests or convictions can lead to panel-physician referral under current State Department medical guidance. These are different from the statutory deportability and inadmissibility grounds that may arise from a conviction. Because the consequences can differ, a proposed plea should be reviewed for immigration consequences before it is accepted.
Immigration Consequences of Criminal Charges (INA § 237 & § 212)
Under U.S. immigration law, an arrest, charge, conviction, and immigration ground are not interchangeable. The consequences depend on the exact criminal offense, its statutory elements, the disposition and sentence, the person's immigration history, and any applicable exception or waiver. A non-citizen should have the proposed criminal disposition reviewed for immigration consequences before accepting a plea:
| Offense Category | Statutory Definition (INA) | Deportation Risk (INA § 237) | Inadmissibility Risk (INA § 212) |
|---|---|---|---|
| Crimes Involving Moral Turpitude (CIMT) | CIMT is not defined by one simple statutory list. Immigration adjudication generally examines the elements of the particular offense and applicable case law. The label can cover some offenses involving fraud, theft, or certain forms of intentional harm, but the exact criminal statute and elements must be analyzed. | Potentially Deportable INA § 237(a)(2)(A) includes a CIMT committed within five years after admission when the offense is one for which a sentence of one year or longer may be imposed, and also includes a separate ground for certain persons convicted of two or more CIMTs not arising from a single scheme. | Potentially Inadmissible INA § 212(a)(2)(A)(i)(I) can make a person inadmissible for a CIMT, subject to statutory exceptions such as the petty-offense and juvenile-offense exceptions and any applicable waiver. |
| Aggravated Felonies | INA § 101(a)(43) contains a detailed list of aggravated-felony categories. The definition includes numerous offenses and, for some categories, sentence thresholds. The exact criminal statute, elements, and sentence must be compared with the federal immigration definition. | Severe Deportability Consequences A noncitizen convicted of an aggravated felony after admission is deportable under INA § 237(a)(2)(A)(iii). Additional consequences can apply, including restrictions on certain forms of immigration relief. | Serious Inadmissibility / Relief Consequences An aggravated felony is not itself a universal lifetime inadmissibility bar. Separate inadmissibility grounds, prior removal, unlawful-presence bars, and other statutory provisions must be analyzed for the particular case. |
| DUI / Driving Under the Influence | A simple DUI is not automatically a CIMT or aggravated felony solely because it is a DUI. The exact offense, aggravating facts, repeat offenses, injuries, drugs, and sentence can change the analysis. | Fact-Specific A simple DUI generally does not by itself create the same deportability consequences as a qualifying CIMT or aggravated felony, but other immigration grounds may apply depending on the facts. | Visa / Medical Consequences Possible Current DOS guidance contains a specific prudential-revocation procedure for certain DUI/DWI arrests or convictions within the previous five years and separate medical-referral rules for specified alcohol-related arrests or convictions. |
| Controlled Substance Violations | Immigration law uses the federal controlled-substance framework. State legalization or decriminalization does not automatically eliminate federal immigration consequences. | Potentially Deportable INA § 237(a)(2)(B)(i) generally makes a noncitizen deportable for a qualifying controlled-substance conviction, subject to the statutory exception for a single offense involving possession for one's own use of 30 grams or less of marijuana. | Potentially Inadmissible INA § 212(a)(2)(A)(i)(II) contains a controlled-substance ground of inadmissibility. The marijuana exception and waiver rules are separate and more limited than the simplified statement that a 30-gram offense is automatically waivable. |
Padilla v. Kentucky Supreme Court Ruling
In Padilla v. Kentucky, 559 U.S. 356 (2010), the U.S. Supreme Court held that the Sixth Amendment requires defense counsel to advise a non-citizen about the immigration consequences of a guilty plea. When the immigration consequence is clear, counsel must give correct advice; when the law is unclear, counsel must advise that the plea may carry immigration consequences. Whether a particular conviction can later be challenged depends on the applicable post-conviction law and the facts of the case.
Department of State Prudential Visa Revocation Workflow
The Department of State has authority to revoke nonimmigrant visas in specified circumstances. Current 9 FAM 403.11 provides a specific DUI prudential-revocation procedure when a qualifying U.S. government database record indicates an arrest or conviction for driving under the influence, driving while intoxicated, or a similar DUI offense within the previous five years. This special DUI procedure should not be generalized to every assault, domestic-violence arrest, or other criminal charge:
- Database Review: For the special DUI procedure, the FAM describes review of an IDENT Watchlist Record generated from specified U.S. government database searches and requires the fingerprints to be re-sent to NGI to obtain a RAP sheet before the prudential revocation is processed.
- Visa Revocation: A prudential revocation is a discretionary visa-revocation action. The exact notice and processing steps depend on the applicable revocation procedure; it is not accurate to promise that every person receives an email revocation notice.
- Visa vs. Status: A visa is used to seek admission and is distinct from the period of authorized stay reflected in the admission record. A visa revocation can prevent use of that visa for future travel, but it does not by itself establish that the person's entire immigration status has ended or that removal is automatic.
- Travel: If a visa has been revoked and physically canceled, the Department of State states that the individual may apply for a new visa but may not travel on the physically canceled visa. A person should obtain individualized immigration advice before leaving the United States because departure can create additional immigration and visa issues.
- Alcohol-Related Medical Review: Current State Department medical guidance provides for panel-physician referral for a single alcohol-related arrest or conviction within the previous five years, two or more alcohol-related arrests or convictions within the previous ten years, or other evidence suggesting an alcohol problem. The medical referral is therefore a separate, fact-specific process and is not an automatic requirement for every criminal visa revocation.
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Related US Tools & Guides
Frequently Asked Questions (FAQ)
• U.S. Department of State — Consular Notification and Access: travel.state.gov/consularnotification
• U.S. Department of State — 9 FAM Visa Revocation Guidance: 9 FAM 403.11
• U.S. Department of State — Medical Ineligibility Guidance: 9 FAM 302.2
• USCIS Policy Manual: uscis.gov/policy-manual
• Immigration and Nationality Act — Criminal Grounds: 8 U.S.C. § 1227