How Law Enforcement Records Can Impact H1B and I-140 Petitions

Any prior encounter with law enforcement, no matter how old, how minor, or what the outcome, can complicate an otherwise straightforward immigration case filed with the U.S. Citizenship and Immigration Services (USCIS). The Murthy Law Firm has been seeing an increasing number of such cases across a range of petition and application types. This article explains the USCIS process when a beneficiary or applicant has any criminal history, what is typically requested, what is at stake, and how to respond effectively.

Background: No Encounter is Too Old or Too Minor

Foreign nationals often assume that an old arrest, a charge that was never filed, or an incident that resulted in no conviction will not affect their immigration case. That assumption is incorrect. The USCIS may conduct background checks on all applicants and beneficiaries, and its systems are connected to FBI criminal history databases. A match, even for a decades-old, dismissed, or expunged matter, may trigger further inquiry.

This applies regardless of whether the individual has previously disclosed the incident on other immigration forms, including nonimmigrant visa applications, or whether a U.S. consulate issued a visa after the incident. The nonimmigrant visa process and the USCIS adjudication process are separate, and a favorable outcome in one does not preclude scrutiny in the other.

As previously noted in the MurthyDotCom NewsBrief, Criminal Violations and Arrests in the Immigration Context (27.Dec.2023), even a seemingly minor criminal offense may result in immigration consequences. Further, it never should be assumed that offenses labeled “simple” or “petty” will not cause problems. The same principle applies in the petition and application context with the USCIS.

Step One: The RFE for a Biometrics Appointment

When the USCIS identifies a potential law enforcement match during its review, the typical first step is to issue a Request for Evidence (RFE) requesting that the applicant or beneficiary complete a biometrics appointment.

In petition cases, such as an H1B petition filed on Form I-129 or an immigrant worker petition filed on Form I-140, this RFE is directed to the petitioner, which is usually the sponsoring employer or company. Simultaneously and separately, the USCIS sends a biometrics appointment notice directly to the beneficiary (the foreign national employee) at their last known address on file.

Some beneficiaries, upon receiving what appears to be an unexpected appointment notice from a government agency, are skeptical about its authenticity and do not appear for their scheduled biometrics appointment. However, failure to attend may have serious consequences, as it may be treated as an inability to establish identity and background, leading to denial of the underlying case.

Step Two: Second RFE or NOID Requesting the Full Criminal Record

Once the USCIS confirms the beneficiary’s identity through the biometrics appointment, the agency typically follows up with either a second RFE or a Notice of Intent to Deny (NOID) requesting the complete criminal record. Where an arrest, charge, or conviction may be relevant to eligibility, admissibility, good moral character, or the exercise of discretion, the USCIS is entitled to request certified court records, arrest reports, and other official criminal record documentation to assess the immigration consequences of the underlying conduct.

The USCIS Policy Manual identifies the specific documents typically required. In practice, the USCIS most commonly requests:

• An original or certified copy of the arrest or police report for each incident
• An official court record reflecting the final disposition of all arrests, charges, or convictions, including dismissals, acquittals, deferred adjudications, and matters where no prosecution was ultimately pursued
• A certified copy of any court order vacating, sealing, expunging, or otherwise nullifying a prior conviction, where applicable

This applies to every incident in the individual’s history, not merely convictions. Where an official record is genuinely unavailable, the USCIS generally will accept a written confirmation on government letterhead from the relevant court or law enforcement agency stating that no record exists or remains available any longer, along with a personal statement from the beneficiary describing the incident and its resolution.

The Growing Trend: Denials Based on Discretion

For many years, responding adequately to the criminal history inquiry, by submitting the requested documents and demonstrating that there was no conviction or that the conviction did not trigger a statutory bar, was typically sufficient to obtain a favorable outcome. That is changing. The Murthy Law Firm has been receiving an increasing number of reports, particularly in recent months, of the USCIS denying cases based on discretion, even where there is no statutory bar to the benefit being sought.

The USCIS has broad statutory and regulatory authority to deny discretionary immigration benefits even to otherwise-eligible applicants. USCIS officers may exercise discretion in determining whether to grant a benefit. USCIS Policy Manual sets out the framework for the legal analysis and use of discretion in immigration adjudications, including the principle that officers must weigh all favorable and unfavorable factors in the totality of circumstances. Discretionary analysis must be conducted on a case-by-case basis.

The USCIS also updated the USCIS Policy Manual on 19.Aug.2025 to clarify how officers evaluate discretionary factors in certain immigration benefit requests. The guidance instructs adjudicators to assign “overwhelmingly negative weight” to certain conduct, including support for terrorist organizations or anti-American or antisemitic ideologies. In light of this heightened focus on discretionary factors, it is increasingly important for applicants to proactively submit mitigating and favorable evidence rather than waiting for the USCIS to draw its own conclusions during adjudication.

Responding Effectively: Demonstrating Mitigating Factors

Whether responding to an RFE, a NOID, or submitting a case proactively, it is essential to provide a robust set of mitigating evidence. Mitigating factors and supporting evidence that practitioners commonly submit include, but are not limited to:

• A detailed personal statement from the beneficiary explaining the circumstances of the incident, accepting responsibility where appropriate, and describing the steps taken since the incident toward rehabilitation and positive contributions
• Evidence that the incident was an isolated occurrence and not part of a pattern of behavior
• Character affidavits from responsible individuals, such as employers, colleagues, religious leaders, or community members, who have direct and personal knowledge of the beneficiary’s conduct and moral character
• Evidence of compliance with all court-ordered conditions, such as probation, fines, counseling, or community service
• Employment history reflecting stability and contributions to the employer and the professional community
• Evidence of community involvement, volunteer work, or civic engagement
• Family ties and responsibilities in the United States
• Length of continuous residence in the United States
• Academic credentials and professional achievements
• Evidence that no further law enforcement incidents have occurred since the original matter

Special Consideration in H1B and I-140 Cases: Petition vs. Status

In employment-based petition cases, particularly H1B petitions on Form I-129, there is a critical distinction between the petition being approved and the immigration status (or change of status) being granted. A USCIS officer may find that an employer and beneficiary have demonstrated all of the substantive petition requirements for H1B classification, yet deny the status benefit (i.e., the change of status or extension of stay) as a matter of discretion based on the beneficiary’s criminal history. In such cases, the USCIS may approve the petition for consular processing of the beneficiary’s visa only, meaning the underlying petition is approved, but the beneficiary must obtain an H1B visa stamp at a U.S. consulate abroad before entering the United States in H1B status.

This outcome, while not a complete denial, carries significant implications in the current regulatory environment. As previously reported in the MurthyDotCom NewsBriefs USCIS Clarifies Who will be Subject to $100,000 H1B Fee (20.Oct.2025) and Latest on Proclamation Implementing $100,000 H1B Fee (08.Oct.2025), H1B petitions that are approved for consular notification on or after that date, where the beneficiary does not already have a valid H1B visa, are subject to the $100,000 fee. This means that if the USCIS denies the change of status or extension and approves only for consular processing, the petition itself becomes subject to this substantial fee. The stakes, therefore, are extremely high.

Conclusion

Criminal history, no matter how old, minor, or previously disclosed, is a significant consideration in USCIS adjudications today. The agency is exercising its discretionary authority more aggressively than in prior years, and the consequences of an adverse outcome can be severe, including denial of status and, in H1B cases, exposure to the $100,000 consular processing fee. Foreign nationals and their sponsoring employers should approach these situations with experienced immigration counsel and a proactive strategy from the outset. The Murthy Law Firm is available to provide guidance and representation in these complex situations.

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