Imagine that you came to the United States on an H-1B visa to work in the technology sector. You have built a life here. Perhaps you brought your spouse on an H-4 visa, bought a car and started saving for a house. Then, one night, a traffic stop, a misunderstanding or a fight you didn't start can suddenly result in a criminal charge. Suddenly, it's not just your freedom that's at stake. It's also your visa, your job and your right to remain in the country.
This is a real fear for a large and growing community. According to the Pew Research Center, an estimated 4.86 million people identified as Indian alone or in combination in the 2021–2023 ACS-based estimate, with the largest reported metropolitan populations in New York (710,000), Dallas (270,000) and San Francisco (260,000). Many of these workers hold H-1B status. For a visa holder, a criminal conviction can have consequences that a U.S. citizen would never face.
Here's something most people don't know: a conviction does not always mean the end of the road. An appeal can change the outcome, and in immigration law, timing is of the utmost importance. In 2023, the U.S. Supreme Court ruled in Pugin v. Garland on how far the aggravated felony category of obstruction of justice under INA § 101(a)(43)(S) reaches. This means that an offense may be considered an obstruction of justice under INA § 101(a)(43)(S), even without an ongoing investigation. If you are an H-1B visa holder facing a conviction, it is crucial that you understand your right to appeal before time runs out.
Key takeaways
- As a criminal appeal can affect both your freedom and your immigration status, the two issues must be dealt with together.
- In the case of Brathwaite (BIA, 2023), the conviction was not considered final for immigration purposes while a direct appeal was pending.
- Deadlines for appeals are short. Federal rules generally allow 14 days, while New York and California allow 30 and 60 days respectively.
- As the Ninth Circuit showed in Alvidrez-Quezada v. Bondi (2025), not every vacated conviction erases immigration consequences.
Table of Contents
Why a conviction hits visa holders harder
For a U.S. citizen, a criminal conviction can result in fines, probation or even imprisonment. For an H-1B visa holder, however, it can also result in the loss of everything they came here to build.
Certain convictions make you removable (the legal term for deportable) under INA § 237(a)(2). Others are classified as an 'aggravated felony' — a term that suggests it only covers violent crimes, but which actually encompasses many offenses that are not considered aggravated or felonies in everyday language. A conviction can also result in visa revocation, whereby the State Department cancels your visa entirely.
That power is real and broad. According to 22 C.F.R. § 41.122(a)–(c), a State Department official has the authority to revoke a nonimmigrant visa at their discretion. A provisional revocation has the same legal effect as a final revocation unless it is overturned. Furthermore, a visa that has been marked as revoked in the department's system is invalid for travel purposes, regardless of whether you have received notice of this. In plain terms, you may not even realize that your visa has been revoked until you attempt to re-enter the country.
The categories here become technical quickly. In Godoy-Aguilar v. Garland (2025), the Ninth Circuit ruled that a conviction in California under Penal Code § 136.1(c)(1), carrying a sentence of 365 days, categorically constituted aggravated felony obstruction of justice, and denied the petition for review. However, the line is not always drawn against the immigrant. In Ndungu v. Attorney General (2025), the Third Circuit ruled that a Pennsylvania fleeing-or-eluding offense did not necessarily constitute moral turpitude, granting the petition for review. The exact statute under which you were convicted can determine the outcome of your case.
The clock is already running
The biggest mistake people make is waiting. Appeal deadlines are short and unforgiving; missing one can close the door for good.
A notice of appeal officially informs the court of your intention to appeal. It usually has to be filed before anything else. Here's how tight the deadlines can be:
- In federal criminal cases, Federal Rule of Appellate Procedure 4(b)(1)(A) usually allows a defendant 14 days from the date the judgment is entered to file a notice of appeal. Rule 4(b)(4) permits an additional 30 days to be granted for excusable neglect or good cause.
- In New York, Criminal Procedure Law § 460.10 typically stipulates that an appeal notice must be filed within 30 days of sentencing.
- In California, Rule 8.308(a) of the Rules of Court generally requires an appeal notice to be filed within 60 days of the judgment or appealable order being issued.
These deadlines vary depending on the state and the type of case, so check the specific rules in your area. Don't assume that you have more time than you actually do.
If you are an H-1B visa holder facing a conviction, you should talk to both a criminal appeals attorney and an immigration lawyer immediately, rather than waiting until next week. These two areas of law overlap, so decisions made in your criminal case could have a positive or negative impact on your immigration case for years afterward.
Do you need an Indian lawyer who speaks Hindi? Heritage Web can put you in touch.
How a pending appeal can protect you
This may come as a surprise to many people: a conviction may not count against you for immigration purposes while a direct appeal is still pending.
In the case of Brathwaite (2023), the Board of Immigration Appeals ruled that a conviction was not considered final for immigration purposes while a direct appeal in New York was still pending. The question of finality can mean the difference between staying in the country and facing removal proceedings — the immigration court process that can result in deportation.
But don't read too much into that. A pending appeal is not a magic shield. In St. John v. Garland (2023), the First Circuit held that a pending state post-conviction motion alone does not invalidate a final conviction, and the court denied the petition for review. The distinction between a direct appeal and a later post-conviction motion is important, which is why you need a lawyer who understands both criminal law and immigration law.
This is where having a skilled criminal appeals lawyer working alongside an immigration attorney can be invaluable. How your case is presented, when your documents are filed and the evidence gathered in the trial court all influence what happens next.
When vacating a conviction actually helps
Sometimes, rather than appealing, it is necessary to seek post-conviction relief — a separate legal process for challenging a conviction after the normal appeal window has closed. One powerful option is to have a conviction vacated, which means getting a court to erase it as if it never happened.
But here's the catch that confuses people: not every vacated conviction solves your immigration problem. It matters why the conviction was vacated.
If a court vacates your conviction due to a genuine legal defect — for example, because the plea itself was constitutionally deficient — this can help your immigration case. In Bent v. Garland (2024), the Ninth Circuit held that the Board of Immigration Appeals (BIA) had mischaracterized a vacatur under California Penal Code § 1473.7(a)(1) because the plea had been vacated as constitutionally deficient rather than to avoid immigration consequences. The court then sent the case back for further consideration.
However, if the conviction was vacated for a reason unrelated to its merits — for instance, to clean up your record for immigration purposes — it may still be used against you. In Alvidrez-Quezada v. Bondi (2025), the Ninth Circuit ruled that a conviction would still carry immigration consequences if it was vacated for reasons not related to the merits of the criminal proceedings.
The law in this area is genuinely unsettled and varies by circuit. In Yanez Piedra v. Blanche (2026), for example, the Fourth Circuit held that a vacated conviction could not be used to establish inadmissibility as a controlled-substance conviction under 8 U.S.C. § 1182(a)(2)(A)(i). This rejected the BIA's framework for determining the reason for vacatur in relation to this specific issue. Different courts mean different answers. A lawyer who is familiar with these rulings will be able to advise you on the current position of your case.
California has a specific statute for this. According to Penal Code § 1473.7(b), there is no set time limit for filing an immigration advisory motion by someone who is no longer in criminal custody. However, a court may consider the motion to be untimely if it is not filed promptly after receiving the relevant immigration notice. The takeaway: even when there's no hard deadline, delaying action can be detrimental.
The Federal Route: Why Numbers Don't Tell the Whole Story
If you were convicted in a federal court, you can file a motion under 28 U.S.C. § 2255 to challenge your sentence on constitutional grounds. This statute usually imposes a one-year time limit under § 2255(f), starting from the latest of four specified events. Additionally, § 2255(h) requires appellate certification before a second or subsequent motion can be filed.
These filings are not uncommon. According to the Administrative Office of the U.S. Courts, federal district courts recorded 3,763 motions to vacate a sentence in FY2023 — though this is merely a filing count, not an indication of how many were successful.
Success is far from guaranteed. These cases are difficult to win, the deadlines are strict and the legal standards are demanding. This is precisely why representation matters so much. According to the American Immigration Council, among immigration court cases examined for FY2019–FY2024, 26.9% of represented respondents received removal orders compared with 61.8% of unrepresented respondents. While these figures do not prove that representation alone caused the gap, they do highlight how much is at stake when you go it alone.
Language, culture and finding the right lawyer
For many Indian immigrants, the hardest part isn't just the law — it's being understood. According to the Migration Policy Institute, in 2023, 21% of Indian immigrants aged five or over reported speaking English less than 'very well'. This makes an already complex appeals case even more challenging when legal terms are lost in translation.
There's also a cultural aspect to consider. In Indian families, a criminal charge often carries deep shame. People stay silent in the hope that it will go away. However, in immigration law, silence and delay can be detrimental. The sooner you act, the more options you have.
Community organizations can help you to find your feet. The South Asian Council for Social Services runs an immigration information legal clinic in New York and provides services in languages including Hindi, Punjabi, Gujarati, Tamil and Telugu. Sakhi for South Asian Survivors publishes immigration rights resources in South Asian languages, including Hindi, and provides a helpline at 212-868-6741 for those facing domestic or family-related situations.
When looking for a lawyer, find someone who specializes in both criminal appeals and immigration consequences. Ask directly: 'Have you handled cases involving the immigration consequences of criminal convictions for visa holders?' It is worth searching for a good criminal appeals attorney who understands your status and can explain it to you in Hindi.
Your next step
A criminal conviction while holding an H-1B visa is serious, but it is not necessarily permanent. Appeals, post-conviction motions and applications for vacatur can change your future — but only if you act before the deadlines pass. The law is complicated and constantly changing, and the consequences for your family and career could not be more serious.
Don't try to figure this out alone and don't just wait and hope. Talk to a lawyer who understands both criminal and immigration law, and who understands your situation.
Get in touch with a lawyer of Indian origin who speaks Hindi and understands your culture. Submit your case details via Heritage Web's secure referral form.
This article provides general information and does not constitute legal advice. If you require guidance on a specific situation, please consult a qualified attorney.
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Sources
- Pugin v. Garland
- Pew Research Center
- Ndungu v. Attorney General
- Migration Policy Institute
- Godoy-Aguilar v. Garland
- American Immigration Council
- Board of Immigration Appeals
- South Asian Council for Social Services
- St. John v. Garland — U.S. Court of Appeals for the First Circuit, 2023
- Sakhi for South Asian Survivors
- Bent v. Garland
- Alvidrez-Quezada v. Bondi
- Yanez Piedra v. Blanche
- Federal Rule of Appellate Procedure 4(b)(1)(A)
- Criminal Procedure Law § 460.10
- 28 U.S.C. § 2255 — U.S. Congress, 2025
- Penal Code § 1473.7
- 22 C.F.R. § 41.122
- Administrative Office of the U.S. Courts
- 8 U.S.C. § 1182
