Memphis immigration lawyer Ari Sauer provides news and information on US immigration law.
Today’s question is being answered by guest expert John Richbourg. John is an immigration law attorney with Siskind Susser, P.C. To view John’s full bio, visit http://www.visalaw.com/jrichbourg.html. You can schedule a consultation with John Richbourg or with one of Siskind Susser’s other attorneys at http://www.visalaw.com/intake.html or by calling 1-800-343-4890 or 901-682-6455.
QUESTION- I am a Canadian citizen and I have been charged with the crime of Solicitation of a Prostitute. This is the first time I have been charged with a crime. I have been offered a sentence of six months probation if I plead guilty. If I accept this agreement will it affect my immigration status?
ANSWER- The first question, in determining the consequences of this, or any other criminal conviction, is whether it is a Crime Involving Moral Turpitude (CIMT). CIMT’s can result in a foreign national being denied entry into the U.S.; ineligible for a change or extension of nonimmigrant status; ineligible to adjust status to become a Permanent Resident; and can make the foreign national subject to removal from the U.S. even if they are otherwise in a legal status. Prostitution is a CIMT. Therefore it is highly likely that a USCIS adjudicator or an Immigration Judge would determine that Solicitation of a Prostitute is a CIMT.
However, CIMT’s are forgiven when they fall under the Petty Offense Exception. A CIMT falls under the Petty Offense Exception where the maximum punishment that can be given for the crime is one year or less and the foreign national is not sentenced to imprisonment for more than 6 months. Keep in mind that in some cases the Judge will issue a sentence of imprisonment for more than 6 months and then suspend the jail time. When this happens, even though the foreign national is imprisoned for less than 6 months, the sentence is for more than six months of imprisonment, and therefore the conviction does not fall within the Petty Offense Exception. On the other hand, if the foreign national is sentenced to no jail time, but is sentenced to more than six months of probation, and the maximum penalty is a year or less, the conviction falls within the Petty Offense Exception.
The Petty Offense Exception only applies where the foreign national has only one conviction for a CIMT. If the foreign national has been convicted for more than one CIMT’s the Petty Offense Exception does save them.
Generally speaking, Solicitation of Prostitution is a misdemeanor which usually means the maximum punishment is less than a year. As a result, a punishment of a fine and a period of probation with no jail time would generally fall within the Petty Offense Exception for CIMT’s. However, laws governing criminal convictions vary between states, so this may not be true everywhere.
Another exception for CIMT is where the foreign national was under 18 at the time they committed the crime. Ins such a case, the CIMT would be forgiven after 5 years from the date of the crime or the date they were released confinement, whichever was later. However, just like the Petty Offense Exception, this exception only applies where the foreign national has only been convicted of one CIMT.
Where a foreign national is convicted of a CIMT, and these exceptions are not available, there are waivers of the consequences of a criminal conviction. However, that topic will have to be covered in a future posting.
A criminal conviction, even one that is not a CIMT, can result in a longer wait to be eligible for naturalization to U.S. citizenship.
The laws governing the consequences of criminal convictions for non-citizens are very complicated. Therefore it is important for any non-citizen who is charged with a crime to hire a criminal law attorney and have their criminal law attorney consult with an experienced immigration law attorney before accepting any plea bargain.