Five years ago I had a drug offense in Turkey that resulted in a deferment of the announcement of verdict (which means the court will deem it as if it never happened after five years). How will this affect the EB-5 visa process for me? Will I need to disclose this information if it happened five years ago and my criminal record is sealed to anyone other than a judge?
You may need to disclose, and we recommend candor and transparency when filing with the Department of State and USCIS. Working with an immigration lawyer will help you prepare approvable applications and manage these issues.
You still need to disclose any criminal record to the U.S. government, no matter if it is sealed or not.
You will need to carefully analyze the underlying criminal charge. Obtain court records and the disposition of the case. Generally, all immigrant visa applicants, when consular processing for an immigrant visa abroad (if an immigrant petition, i.e. I-526 is approved), are required to furnish a criminal record and disposition of criminal matter(s) or police clearance establishing lack of a criminal record for any places of residence inside a person's home country of longer than six months since age 16 (and for any places of residence outside a person's home country of longer than one year). You should consult an immigration attorney regarding this criminal charge's implications and inadmissibility issues before you invest.
You may be permanently barred from immigrating to the United States, as no conviction is required for drug crimes to be considered a bar to admission. I strongly suggest you talk to competent and experienced U.S. immigration legal counsel to review your options going forward.
Be careful - this sounds much like a continuation without a finding that many state courts will issue. The federal regulations will many times consider this a guilty finding. How they view the law of Turkey, I am not sure. You should seek the help of an attorney in filing your petition.
Routinely the DHS will not recognize expungement of a criminal conviction. Yes, you must report all arrests and the final disposition of each, even if the matter is not prosecuted or dismissed. You need an immigration attorney who is experienced in criminal convictions and, particularly, categorical analysis. My experience is that a judge will generally seal a record with the exception that it can be made available to other judges, including immigration judges. Check the specific language of the order sealing the record.
You have to disclose any arrests or the like, and then note the final disposition. You should retain private immigration counsel for this.
Once you are eligible to apply for your immigrant visa abroad based upon an approved I-526 EB-5 investor petition or you file an application for adjustment of status with the United States, there will be a more extensive background check. You should assume that the drug offense in Turkey may pop up on the computer. Thus, you should consulate with specialized counsel on this matter. Failure to disclose that information could adversely affect you. On the other hand, your Turkish drug offense could also adversely affect your application.
Your questions requires careful analysis of the underlying criminal charge. You should obtain a copy of the charge and provide it to an attorney for further analysis regarding your specific case. Make sure to have it translated into English. However, generally speaking all applicants who process for a visa at a U.S. consulate abroad must provide a police certificate indicating any criminal background or lack thereof from every place the applicant has lived since he or she was 16 years old. Furthermore, you will be asked about arrests and other criminal charges. At your visa interview, a consular officer will determine whether or not you are eligible for a U.S. visa. Should you be found ineligible, the interviewing consular officer will decide on whether or not to submit a request for a waiver of your ineligibility. The recommendation for a waiver is at the discretion of the interviewing consular officer and will be based on the nature, recency, and severity of your offense(s).
You have to disclose the arrest. Mere drug use can render you ineligible. You need to submit the court records, and need to hire a lawyer to see if you are inadmissible.
You will need to disclose the offense at the second stage of the process (consular processing or adjustment of status, depending on where you are when you apply). Whether or not your drug offense will affect the outcome is impossible to determine without looking at your criminal case paperwork from Turkey.
Disclosure of all criminal records together with a detailed explanation of the outcome of the cases is highly advisable. This will prevent an allegation that intentional nondisclosure suggests that you were not being truthful.
