There is a common misconception of many Green Card holders as to whether they are eligible for naturalization if they had been arrested for shoplifting (“retail theft”) at some time in the past. They may think that their criminal record makes them permanently ineligible for citizenship, and/or even potentially deportable. So they are afraid to apply for citizenship even though they might otherwise qualify.

In general, applying for citizenship U.S. immigration law requires that one has been a person of “good moral character” for the past five years (three years for certain persons married to U.S. citizens). For certain, more serious crimes the USCIS may even look back beyond than that 3-year or 5-year period and some may prevent naturalization all together, even if they occurred long ago, such as having been convicted of murder at any time.

Although retail theft is often an impulsive act, it does not make it any less deliberate in the eyes of the law and for immigration purposes, theft offenses are almost always considered “crimes of moral turpitude” even when the charge only reaches the level of a misdemeanor.

However, there is a limited exception for certain minor crimes, “petty offenses.”
A petty offense is defined as a crime meeting two very specific conditions. First, the maximum possible penalty for the crime in the state where it occurred must not exceed a year of imprisonment. Second, if the offender was actually convicted and sentenced, the actual term of imprisonment given (even if suspended by the court) must not exceed six months. The petty offense exception does not apply to someone who has been convicted of more than one crime involving moral turpitude, even if only one of the CIMTs was committed during the past five years.

In order to establish that one qualifies for the exception, one must provide the actual state criminal statute clearly outlining the nature of the offense and the penalty at the time the offense was committed. It is also necessary to submit the court record, showing the charge and the sentence. If those documents are unclear, it may be necessary to provide a letter from a criminal law attorney to explain the document to the USCIS or the consular officer.

Please also know that the petty offense exception does not change the responsibility to disclose an arrest on the N-400 and provide a certified court disposition with the application. This is true even if the conviction has been expunged from the record. The criminal background checks conducted by USCIS include all arrests, even if there was no conviction or the record was eventually sealed. It does not matter when an arrest may have occurred or what its outcome was. Failure to disclose could lead to a charge of fraud or misrepresentation, which can be even harder to overcome.