Can I naturalize with DUI conviction?

A lot of permanent residents have been arrested and/or convicted for driving under the influence of alcohol even if no accidents happened or it was a one-car accidents.  By the way, my general advice to everyone is not to drink and drive (though, to anyone who is not a citizen, my extreme advice is not to drink till they become citizens because as a non-citizen, you have fewer rights and the ultimate punishment is being thrown out of the United States).  You are not only posing a huge risk to yourself, your own family and others in your car, as well as to other innocent people.  If you are legally able to drink, do so in your own home (hey, it is okay to get wasted once in a while, though, excessive alcohol consumption is bad for health).  If you choose to do so at other people's homes (yes, there are a lot of idiots who let people get drunk in their homes and then let them drive -- I limit alcohol at my party and if someone is too drunk, I offer to let them sleep in my house, and if they insist on going home, I pay for a taxi, and in the worst case scenario of someone getting drunk and then insisting on driving, I simply call the cops on them even if they are my family).  Assuming you want to drink outside your own home, if you are willing to spend money on alcohol, you should spend a bit on getting a taxi as well.  There is also the concept of 'designated drivers' for people who are misers or poor.  The idea is that one individual who knows how to drive and has a valid driver's license agrees not to drink at all or has only one drink so that others can enjoy.  The favor can be returned in kind or even in cash or gift (like paying for this person's dinner).

Immigration status at time of DUI is important:  Now, let us assume that you are stupid and care neither for your life nor for that of others, and you were busted for drunk driving.  Several scenarios are possible when you get stopped for DUI and they all have enormous consequences.  So if you are a non-citizen, the first thing you have to do is to call your immigration attorney in addition to a DUI attorney.  Prior to talking to your attorney, do not say anything because you do have a right to remain silent.  When speaking to the DUI lawyer, disclose your immigration status (pleading guilty in return for a lower sentence can have serious consequences).  Obviously, if there was evidence of alcohol consumption, you will be convicted and penalized in all sorts of ways including jail time, fines, points on license, higher auto insurance rates, and even deportation.  However, if you managed to evade deportation and are otherwise eligible for naturalization, what should you do?

Green card holders with DUI should never apply for citizenship without attorney help:  I repeat, if you have a DWI conviction, do not try DIY naturalization.  Get a good attorney to assist you.  The first thing that makes the case complicated is that DUI laws vary by states.  In addition, the circumstances of your cases will not only influence how you are punished but also what it means at the time of your N-400 decision.  For example, if you have children in your car even if no one was harmed will not please a judge or a USCIS agent.  Needless to add that if you hurt someone or caused an accident or obstructed traffic, no one will treat you kindly.  Such details will be available in police report and court papers, which either you will provide or the USCIS will access on its own.  Another key consideration is if you have other crimes in your history.  Since not every DUI conviction leads to prison time or severe punishment -- many drivers are merely given probation and if they behave the probationary period can be ended earlier -- it does not mean that your naturalization will be denied or your green card revoked and you being deported (by the way, a DUI conviction or even refusal to take a breath test when stopped by police means that even if you manage to get a US passport, you will not be able to travel to Canada and several other countries, even if you have no intention to drive there).  A lot depends on the individual circumstances and how the USCIS views those.  The best way, therefore, is to consult a lawyer even before considering citizenship.

Can the USCIS see my tax records?

I get emails from aliens (both legal and illegal) who have worked illegally (meaning that even if they were lawfully in the count they worked and got paid; this can happen when students or those on spouse visas without employment authorization engage in paid employment, even if it is part time).  The problem is much more widespread among those immigrants who are legally present and also have Social Security numbers.  Many of them take contract work for which they get paid.  Things can get even more complicated when these aliens either out of fear (remember that if someone has paid you for work, most likely they will inform the relevant authorities like IRS and the state government about it) or ignorance or a desire to cheat do not file a tax return reporting the income unlawfully earned.  So what will happen if they apply for another immigration benefit, like permanent resident or citizenship?

  1. While it is morally and legally wrong to engage in illegal activities, if there is no record, you will most likely get away with it, particularly if it is occasional and the amount of payment is small.  The United States authorities has other things to worry about and as a result we have over 12 million undocumented aliens working without authorization.  It does not mean that it is okay to do it just because you are less likely to get caught.  Also note that they would not be able to legalize their status unless their crime is explicitly forgiven in any comprehensive immigration reform.  Unfortunately, such pardons cover only undocumented aliens and if you broke the law while you were legally in the US, you will not be covered by this amnesty.
  2. Whether you are present in the United States lawfully or unlawfully, always report your income to the Internal Revenue Service (IRS).  Even if you are getting paid in cash with no paper trail and the employer is clearly breaking the law by hiring you, it is better to to file a tax return reporting the illegal income than not.  When you face a law enforcement agent, you will be much better off if you paid taxes on illegal income than not only working illegally but not paying Uncle Sam either.  If you do not have a SSN, while it is not meant for illegal workers, you can apply for an ITIN to report your income to the IRS.

  3. Always work with the hypothesis that the USCIS can find out anything and everything about you, particularly from a Federal or State agency.  The Agency also has the legal authority to subpoena any business or individual in the United States to provide information and documents on any alien (a business would most likely collaborate with the authorities rather than defend you and is probably going to blame you for misrepresentation and fraud).  USCIS cannot directly access the data held by IRS and Social Security Administration (SSA) but it has the legal authority to do so.  In other words, if USCIS has doubt that you have worked illegally or not paid taxes or you have hid that information from them (all serious crimes, for which a judge will not have a second thought issuing a warrant), it can find that relatively easily. 
  4. Always assume that when you apply for a visa or adjustment of status or naturalization, the USCIS knows everything about you.  Making an attempt to hide information or telling lies can jeopardize your application, and if you have misrepresented facts at any point, the USCIS can revoke your visa, green card, and even citizenship.  After that not only will you be deported, you will be imprisoned for years before that.
  5. If you have worked illegally or not paid taxes, you are much better off discussing this with your immigration and tax attorneys prior to filing a petition.  It is still easier to admit wrongdoing and taking corrective action (e.g. filing a tax return, amending past taxes, etc.) than hoping that you will not get caught.

Immediate filing of AOS for parents on tourist visa

Andy writes, "My parents arrived on visitor visas last month and within a few weeks I filed for adjustment of status for them since I am a US citizen and would love to have my parents here.  Since I wanted their green cards to arrive before the expiration of their authorized stay on tourist visa, I rushed to do the paperwork, only later on realizing that once the application has been filed and an acknowledgement received, they will be in lawful status till the case is decided.  While researching the same I also came across discussion that I should have waited for at least 90 days to petition them.  What's next?  Will their applications be rejected?  Please help."

The rush with which you filed these immigration petitions makes it appear as if your parents never really intended to visit America as tourists (which, as you very well might know, is the intent of the tourist visa and whether the visitor is asked this question specifically or not either at the time of interview or at the port of entry, that is the implied intent).  Because of the informally used 30/60 day rule, USCIS adjudicating officer will assess that intent of an alien was not leisure travel but to become a permanent resident.  A tough decision maker at USCIS, who follows the rules strictly, will conclude that in order to submit the application, you probably started working on it as soon as they landed because it takes some time to organize all the paperwork and your parents probably brought along with them documents like birth certificates that a typical visitor would not  -- most normal visitors do not just decide to settle in American within days of their arrival; it is a complex decision to abandon your country and make USA your new home (the rule of thumb, as you found out, is to wait at least 90 days after arrival).  So, while a lenient officer might simply ignore all this and give a stamp of approval (knowing that they are most likely elderly and eligible), another agent may deny the application and ask them to seek consular processing after cancelling their visitor visa.  It would be based on the simple logic that when they boarded a flight to America, they intended to stay there permanently (by the way, this is loophole that is so often exploited by immigrants that USCIS agents are fully aware of it).  Immigrants would rather adjust the status right here in the USA than to wait overseas and deal with the nightmare of showing up at US embassies and consulates, which often require long travel and endless waiting in lines.

In addition, if this was their very first trip to the United States of America after receiving their B1/B2 visas, it might be concluded that they engaged in fraudulent misrepresentation to get those visas because they really did not intend to check out the Grand Canyon or Times Square; they basically wanted to take a shortcut to their lawful permanent resident status. In other words, they lied about their intentions to a Consular officer.  Be prepared that this could result in revocation of their visitor visas and denial of adjustment of status.  You could still appeal the decision and hope that an excellent immigration attorney (basically, you are paying the price of not consulting with a lawyer in the first place -- there is a reason why these folks study law) can convince a judge to overturn the rejection.  Alternatively, you can do the paperwork again for them to go through consular processing.

Maintain TPS status in USA after becoming Canadian permanent resident

Carlos writes, "I am in the United States on temporary protected status (TPS) and am in college.  In the meantime, though family, my application to become a permanent resident in Canada has been approved.  Now, I must travel to Canada to land, but I do not want to lose my TPS in the US.  I would prefer to complete my education here and then relocate permanently to Canada to work there.  Can I do this?"

You see, by declaring your intention to permanently immigrate to Canada, you are telling the US Government that your life is no longer in danger and you have a comfortable future ahead of you in Canada.  In other words, you really should not be protected by American taxpayers at all.  In practical terms the way this will work is that as soon as you file the paperwork for advanced parole to leave and reenter the United States from Canada, you will need to disclose the reasons in the USCIS Form I-131.  When you tell them that you intend to travel to Canada to activate your permanent residency there, the US will act to revoke your TPS (do not even attempt to tell lies to the US about the intent of your trip -- for instance, visiting a dying grandma in Canada -- because when you try to re-enter the United States the CBP officer will know immediately from the access to the Canadian database and a stamp in your passport that you are a Canadian permanent resident, you will be denied entry and sent right back to what should really be your future home). 

Your idea is wrong on other grounds as well.  Canadian permanent residents are expected to live in Canada for at least two out of five years, so you will really need to travel frequently to Canada and that will be impossible with TPS in the US which mandates an approval from the USCIS before every overseas visit.  The conclusion is that your best option is to wrap up your affairs in the United States and relocate to Canada.  The TPS is a humanitarian effort that costs American taxpayers a lot of money and by acquiring permanent resident status in Canada, your life is no longer under threat, and you should let other more deserving candidates have the chance to utilize the slot.

Naturalization after tax delinquency

Khosh writes, "During a rather difficult period in my life as a green card holder, I did not file my taxes on time because I had to put food on the table for myself and my family and provide them with a place to live.  Thankfully, after a few years of misery, we survived the ordeal, and I had enough income to live and pay taxes.  I worked with the United States Internal Revenue Service (IRS) to workout a payment plan and for last two years, each month I mail a check to them.  I am now applying for naturalization and wondering if this is somehow going to hurt my chances of approval."

Well, you did the right thing by agreeing to a payment plan and then making timely payments of past taxes.  What USCIS expects is that you will eventually pay every penny you owe to Uncle Sam.  So as long as you show documentation of the agreement with the IRS and record of your payments, along with up to date taxes for years afterwards, you will be approved.  It would not be surprising that this issue is not even mentioned during the interview.  Remember that IRS has ways to collect past due taxes and it is even easier to force citizens to pay, so your approval is very likely.

Cannot find arrest records over 10 years ago for N400

Jason writes, "When I was a teenager over 20 years ago for trespassing for which I was convicted and did community service as punishment.  Naturally, I was not too good with keeping records, and have basically nothing with me related to that incident.  Now, that I am entering my middle age and have finally realized the value of American citizenship, I want to file my N-400 application, but when I asked the court for a copy of my arrest, they told me that they do not have records beyond ten years. What should I do?"

Needless to add that you must disclose your arrest on your application and provide as much detail as possible.  You will also need to attach a copy of the letter that you received from the court that no records can be provided.  Chances are that during your background search, all the details about the arrest and court process will pop up.  So the USCIS officer will be able to see what happened.  In addition, expect to be questioned at length during the naturalization interview about the arrest.  My advice would be that due to this complication (arrest, conviction, and lack of records), you might want to spend the money and hire a good attorney who deals with naturalization cases.