Question: I am a non-citizen who was convicted of a crime in the U.S. a few years ago. Recently, my criminal attorney helped me get my criminal record expunged and sealed. Now, I am preparing to apply for a green card on the basis of marriage to a U.S. citizen. The green card application asks if I have ever been arrested, prosecuted, or convicted of a crime. Since my conviction was expunged, can I answer “No” to these questions?

Answer: You must answer “Yes” to these questions and any other applicable questions. For immigration purposes, the expungement or sealing of a criminal record does not mean the criminal record does not exist. You must answer all questions on the green card application truthfully without regard to the expungement of your record.

Expungement: The Criminal Justice System vs. the Immigration System

An expungement is the deletion of a criminal conviction from your record. In most U.S. states, if a court has expunged your criminal record, then you are considered to have never committed a crime at all in the context of the criminal justice system. If an employer, landlord, or lender asks if you have a criminal record, you can truthfully answer “No.” A background check on you will not reveal your prior conviction. 

However, the criminal justice system is different than the U.S. immigration system. For immigration purposes, criminal arrests, indictments, and convictions always exists, regardless of whether they have been expunged. The green card application asks you to answer questions such as:

• Have you ever been arrested?
• Have you ever been a defendant in a criminal proceeding?
• Have you ever pled guilty to a crime? 
• Have you ever been convicted of a crime?
• Have you ever been ordered punished by a judge?

If the answers to any of these questions is “Yes,” you must answer truthfully, even if your conviction was later expunged.

During your green card application process, you will provide your fingerprints to USCIS. USCIS will compare your fingerprints and other information to information in the FBI database. If you have been arrested, USCIS will know.

What is the effect of a criminal conviction on my green card application? 

The fact that you have been arrested or even convicted of a crime does not automatically mean that USCIS will deny your green card application. Whether you can still obtain a green card with a criminal record depends on several factors, such as the facts of your case, the nature of the crime, and the sentence you received.

According to U.S. immigration law, convictions for crimes involving drugs, prostitution, money laundering, or human trafficking may make you ineligible to receive a green card. 

Even if you have been convicted of one of the above crimes, you might be eligible for a waiver of inadmissibility, which means you may still be able to obtain a green card.