Readers’ questions

This week I received a few questions from readers and clients regarding their immigration situation. Let’s discuss them here:

Q1: I was born here in the US. My wife and I have been married for more than 10 years now. It has been five years now since she obtained her greencard through the spousal petition I filed for her. What eligibility criteria should she use when she files for application for naturalization?

A1: Her situation presents two ways in which she qualifies for naturalization. One is through the five-year lawful permanent residency and the other is through the three-year rule which is marriage and living with a US citizen spouse in the last three years, three years have passed since obtaining a greencard and the spouse has been a US citizen for at least three years, in this case, since birth. Either of these two qualifies the wife for naturalization. However, picking the first option (the five-year permanent residency eligibility) is easier, more straightforward and there is less need for proof. If you take the second option of three-year rule, you would have to provide more evidence of the marriage, thus needing more information and documents.

Q2: I was arrested for an offense involving sexual misconduct back when I was a minor. I was sentenced to and served some years under probation. Eventually I completed it and my court records were sealed. I am now applying for naturalization. Should I tell USCIS of my conviction even if my criminal record was sealed?

A2: Yes. Even if your prior criminal conviction was sealed, you would have to divulge your arrest, charges, and conviction as a matter of requirement. Immigration law requires disclosure of criminal history. A conviction either sealed or expunged does not exempt such disclosure requirement.

Q3: I am involved in a criminal case in my country as a co-conspirator of fraud. Can I apply for asylum due to the fact that I think the cases filed against me are designed in order for me to serve as a witness in order to testify against the main suspect who happens to be a politician?

A3: This question is very loaded with a lot of entanglements. A criminal defense attorney and an immigration attorney should carefully tread on this complex legal issue. As a general rule, asylum to the US is only limited to very specify instances of persecution --race, nationality, religion, political opinion, and membership to a particular group or class. It looks like you are being prosecuted, not persecuted, for a criminal offense and the basis of which is your participation in a crime of fraud.