Can a criminal record stop me from getting TPS?

This page is general information, not legal advice. TPS crime rules are stricter than most people expect, and also more exact. A careful count of your court papers often gives a clear answer. Do that before you file, not after.

What does the TPS law say about crimes?

You are not eligible for TPS if you were convicted of any felony or 2 or more misdemeanors committed in the United States, or if one of the asylum bars applies to you, such as a particularly serious crime (8 USC 1254a(c)(2)(B); 8 CFR 244.4).

The TPS rules define the words their own way (8 CFR 244.1):

• Felony: a crime punishable by more than 1 year in jail, no matter how much time you actually served. There is one exception: if the state calls the crime a misdemeanor and the sentence the judge gave was 1 year or less, TPS treats it as a misdemeanor.
• Misdemeanor: a crime punishable by 1 year or less.
• Does not count at all: a crime punishable by 5 days or less.

What matters is the maximum punishment the law allows, not what you got. In California, a misdemeanor can be punished by up to 364 days (Penal Code 18.5), so most California misdemeanors count as misdemeanors for TPS.

What counts as a conviction?

Immigration law counts a formal finding of guilt. It also counts a guilty or no contest plea, or an admission of enough facts, plus some punishment or restraint, even when the court held off on a final judgment (USCIS Policy Manual, Vol. 12, Part F, Ch. 2).

• An arrest with no charges or a dismissed case is not a conviction.
• A juvenile court case is generally not a conviction for immigration (same Policy Manual chapter).
• Diversion depends on the program. Some start with a plea that counts.
• Infractions, like most traffic tickets, cannot be punished with jail in California (Penal Code 19.6). The TPS rules say a crime punishable by 5 days or less in jail is not a felony or a misdemeanor (8 CFR 244.1). So an infraction does not count toward the TPS crime bars. Make sure the ticket really was an infraction, not a misdemeanor. A lawyer can check.

Can I get TPS with one misdemeanor?

Often, yes. One misdemeanor alone does not trigger the felony or two misdemeanor bar. But check three more things:

1. Is it one of the crimes that blocks TPS on its own? See the next section.
2. Is it really a misdemeanor under the TPS definition? A "wobbler" charged as a felony may count as a felony unless it was reduced.
3. Does it make you look like a danger? TPS is still a decision USCIS makes, and a serious record can lead to more questions.

DUI is a common example. One misdemeanor DUI usually does not block TPS by itself. A second one would be a second misdemeanor.

Which single crimes block TPS?

TPS applicants must also be "admissible." Most grounds can be waived for TPS for humanitarian reasons, family unity or the public interest. These criminal grounds cannot be waived (8 USC 1254a(c)(2)(A)(iii); 8 CFR 244.3):

• A crime involving moral turpitude (an immigration term for crimes like theft, fraud and some assaults). One conviction or admission can block TPS. A single minor one may fit the petty offense exception: only one such crime, a maximum penalty of 1 year or less, and a sentence of 6 months or less (8 USC 1182(a)(2)(A)(ii)). See What is a crime involving moral turpitude?
• Any drug offense (controlled substance). The only exception for TPS is a single offense of simple possession of 30 grams or less of marijuana, which can be waived.
• Multiple convictions with total sentences of 5 years or more.
• Drug trafficking, if the government has reason to believe you were involved, even without a conviction.

Some of these apply to what you admit, not only what you were convicted of. Do not describe old conduct to an officer before talking to a lawyer.

Can I lose TPS I already have?

Yes. USCIS can withdraw TPS at any time if you become ineligible, for example by a second misdemeanor or a felony (8 CFR 244.14). It can also withdraw TPS if you fail to re-register without good cause, or leave the US without permission. Losing TPS can lead to a case in immigration court.

If you are arrested while you have TPS:

• Tell your criminal defense lawyer that you have TPS before any plea. In California, your defense lawyer must give you accurate advice about immigration consequences (Penal Code 1016.3).
• Ask whether a different plea would keep you under the TPS limits, for example one misdemeanor instead of two, or a charge that is not a drug or moral turpitude crime.
• Watch for detention. For people who entered without inspection or without valid papers, the Laken Riley Act requires detention after an arrest or charge for theft, shoplifting, burglary and some other crimes. Ask a lawyer how this applies to someone with TPS.
• Answer every question about arrests and convictions truthfully when you re-register.

Does clearing my record help?

Sometimes. It depends on the kind of relief:

• Expungement under Penal Code 1203.4 helps with jobs but usually still counts as a conviction for immigration.
• Vacating a conviction for a legal defect, such as not being told about immigration consequences, removes it for immigration (USCIS Policy Manual). In California this is often a motion under Penal Code 1473.7.
• Reducing a wobbler to a misdemeanor under Penal Code 17(b) can help. California law says a reduced wobbler is "a misdemeanor for all purposes" (Penal Code 17), and the TPS rules treat a crime as a misdemeanor when the state defines it as one and the sentence imposed was one year or less (8 CFR 244.1). Whether USCIS accepts a reduction made after the conviction is a question for your lawyer. Ask before you rely on it.

Read Clearing your record in California when you have an immigration case first.

What should I bring to a legal screening?

• Your California DOJ record and your FBI record
• Certified court papers for each case: charges, plea form, judgment and sentence, and proof that probation ended
• Every ticket or citation you received, even if you just paid it
• Your TPS approval notices and past I-821 forms, if you have them
• Any arrests or convictions in another country

What mistakes should I avoid?

• Assuming a ticket "doesn't count." Some do. Bring it.
• Re-registering late. A missed re-registration window can cost you TPS for reasons that have nothing to do with your record.
• Pleading to two small charges to "get it over with." Two misdemeanors end TPS eligibility.
• Trusting a notario. Only lawyers and DOJ accredited representatives can give legal advice (EOIR).

Who can help?

Bay Area help (San Mateo and Santa Clara counties):

• CLSEPA: TPS and crimes screening for low income residents of San Mateo and Santa Clara counties. (650) 326-6440. Walk in Monday to Friday, 9 a.m. to 1 p.m. (CLSEPA).
• Catholic Charities San Francisco, San Mateo and Marin: TPS help. (650) 285-6451 (Catholic Charities SF).
• Asian Law Alliance (San Jose): (408) 287-9710 (Asian Law Alliance).
• Immigration Institute of the Bay Area (Redwood City): free first consultation, by appointment, (650) 587-1558 (IIBA).

Anywhere: the DOJ recognized organizations and accredited representatives roster (EOIR) and Free legal help in the Bay Area.

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

Questions people ask

I have one misdemeanor for shoplifting. Can I still get TPS? Maybe. It is one misdemeanor, but theft is often a crime involving moral turpitude. The petty offense exception may apply if it is your only one and the sentence was 6 months or less. Get it checked.

I was arrested but the case was dismissed. Will that stop me? A dismissed case is not a conviction. You still must list the arrest if the form asks.

My felony was reduced to a misdemeanor. Is it still a felony for TPS? It may be treated as a misdemeanor if the reduction was valid and the sentence was 1 year or less. A lawyer should confirm with your court papers.

I had a marijuana possession conviction years ago. A single offense of simple possession of 30 grams or less can be waived for TPS. More than that, or a second drug offense, cannot.

Does a DUI from my home country count? The felony and misdemeanor count only covers crimes committed in the United States. Other rules, such as moral turpitude and drug grounds, can apply to crimes anywhere. Tell your lawyer.

Is there a worksheet I can print?

Yes. Fill it in with your court papers in hand, then bring it to a legal screening.