One of the issues that I occasionally encounter in my practice is individuals who wish to get a green card or naturalize that have a criminal record, especially from their younger days. Whether a criminal history will bar receipt of immigration benefits depends on the benefit being sought, the type of crime committed, the punishment imposed, and how long ago the crime was committed. For example, in order to naturalize, the individual usually must prove that they have had good moral character for the previous five years. Although immigration officials have wide latitude to determine what constitutes good moral character, examples of individuals who do not have good moral character (and therefore will not be approved for naturalization) include habitual drunkards and individuals who have served more than 180 days in jail during the previous five years.

If a previous criminal history is a potential issue, the first step is for the client to disclose to his or her attorney all known information about the criminal history prior to filing for any immigration benefit. The information should include all arrests, the date of the arrest, the location of the arrest, the charge(s), and the outcome of the case. If the client does not know the details or have records of his or her criminal history, all is not lost. With the client's consent, the attorney can run a criminal history check on the client to determine the required information.

Although clients are often uncomfortable discussing this information with their attorney, the attorney is better equipped to represent the client if the attorney is knowledgeable about the client's criminal history. By providing criminal history information to the attorney, the attorney should then be able to advise the client whether the criminal history will prevent the client from obtaining the desired immigration benefit.

By failing to disclose an existing criminal history, the attorney is unable to provide the client with the proper advice. For example, if an attorney is unaware of a criminal history and files immigration papers on the client's behalf, the immigration benefit may be denied due to the client's failure to disclose a criminal history to immigration, regardless of the nature of the crime. Worse yet, depending on the criminal history, the individual may be denied the immigration benefit and potentially subject to deportation.

To avoid these situations, when consulting an immigration attorney, the client must disclose their entire criminal history. It is much better to disclose the information up front than to hope immigration officials do not discover a past criminal record. By disclosing such information to one's attorney, the attorney can properly assess the situation and advise the client during the immigration process.