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Arrests, Convictions and the DS-160
The form asks whether you have been arrested or convicted. This site's advice on answering it is unchanged and simple: answer accurately, because a false answer is a misrepresentation problem that is permanent, while the underlying fact very often is not.
What this page adds is the part that is usually missing — what the ineligibility actually requires, from 9 FAM 302.3, read on 21 September 2026.
This is not legal advice, and criminal record questions turn entirely on the specific statute you were charged under and the jurisdiction you were in. If you have a record, this is a subject for an immigration lawyer, not for a guide.
A conviction is not automatically a bar
The relevant ground, INA §212(a)(2)(A)(i)(I), concerns a crime involving moral turpitude — not every offence. And even where one exists, the statute itself contains two exceptions.
The petty offence exception
Formally the sentencing exception, at INA §212(a)(2)(A)(ii)(II). It applies where all three hold:
(1) The applicant has been convicted of or has admitted to the commission of only one crime involving moral turpitude; and (2) The maximum penalty possible for the crime … did not exceed imprisonment for one year; and (3) If the applicant was convicted of such crime, the applicant was not sentenced to a term of imprisonment more than six months.
Note the second condition carefully: it is the maximum the statute allowed, not what you actually received. A short sentence under a statute carrying two years does not qualify.
And the third has a trap that catches people with suspended sentences:
The language that the applicant was not sentenced to a term of imprisonment more than six months refers to how long the applicant was originally sentenced for, regardless of the extent to which the sentence was ultimately executed.
So a twelve-month sentence suspended to none is still a twelve-month sentence for this purpose.
The minor exception, and juvenile delinquency — which are not the same thing
The minor exception at INA §212(a)(2)(A)(ii)(I) applies where:
(1) The crime was committed when the applicant was under 18 years of age; and (2) The crime was committed (and the applicant released from any confinement …) more than five years before the date of application.
More than one crime involving moral turpitude, and it does not apply.
Juvenile delinquency is a separate doctrine. Under the Federal Juvenile Delinquency Act, certain offences committed before an eighteenth birthday are treated as delinquency rather than a crime at all — the manual is explicit that although the FJDA "may sound like the minor exception … it provides a distinct legal criterion" for whether a conviction exists for immigration purposes.
What counts as a conviction
INA §101(a)(48) defines it as a formal judgment of guilt — or, where adjudication was withheld, a finding or plea of guilt (or an admission of sufficient facts) together with the imposition of "some form of punishment, penalty, or restraint of liberty by a judge."
Two consequences follow that surprise people:
- The officer decides this as a fact, not by database lookup. "Whether a conviction exists is a factual matter for you to decide, independent of any official record that appears in a database." The manual lists replies on a visa application itself among the sources.
- Expungement does not automatically make it disappear. The manual notes that some convictions triggering this ground "are no longer a matter of record due to the passage of time, generous expungement provisions under local law, or other reasons" — the point being that the absence of a record is not the same as the absence of a conviction.
Admitting a crime has strict procedural requirements
The ground can rest on a conviction or an admission. But the manual says plainly that "it is often difficult to obtain a legally valid 'admission'", and sets out the procedure an officer must follow, drawn from judicial and BIA decisions:
(1) The crime … must appear to constitute moral turpitude based on the statute. It is not necessary for the applicant to admit that the crime involves moral turpitude. (2) Before the actual questioning, give the applicant an adequate definition of the crime, including all the essential elements … in terms they understand, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed. (3) Give the applicant a full explanation of the purpose of the questioning. The applicant must then be placed under oath and the proceedings be recorded verbatim. (4) The applicant must then admit all the factual elements which constituted the crime.
That is a formal process, not a conversation at a window. Saying "yes, that happened" in an interview is not the same thing as a legally valid admission under these rules.
None of which is a reason to be evasive. The procedural protections exist around the admission ground; they do nothing for a false answer on the form, which is a separate and worse problem.
Frequently asked questions
I was arrested but never convicted. Do I have to declare it?
Answer the form's questions accurately — it asks what it asks. Separately, the ineligibility requires a conviction or a legally valid admission, so an arrest that produced neither is not by itself this ground.
My conviction was expunged. Is it gone?
Not necessarily. The manual expressly contemplates convictions that are no longer a matter of record through expungement, and treats whether a conviction exists as a factual question for the officer rather than a database result.
I got a suspended sentence. Does the petty offence exception still apply?
The test looks at the sentence originally imposed, "regardless of the extent to which the sentence was ultimately executed". A suspended twelve-month sentence is twelve months for this purpose.
I have two old minor offences. Do the exceptions help?
Both exceptions require only one crime involving moral turpitude. With more than one, neither applies on its face.
The officer asked me about an old incident and I said yes. Have I admitted a crime?
Not necessarily. A legally valid admission requires the elements to be explained beforehand, an explanation of the purpose, an oath, a verbatim record, and an admission of all the factual elements. The manual notes such admissions are often difficult to obtain properly.
Is there a waiver if I am ineligible?
For nonimmigrants, INA §212(d)(3)(A) exists and does not require a qualifying relative or a waiting period — see the 212(d)(3) waiver. Whether it fits your case is a question for a lawyer.