By Parviz Malakouti-Fitzgerald, Esq.
Does the passage of time hit the reset button on your old arrest record?
Anyone who’s ever been arrested naturally wants to put that brush with the law behind them.
Article Outline:
An important step in that process is to understand exactly what happens with that arrest record. Does an arrest in the U.S. that didn't lead to a conviction get automatically deleted or removed from your FBI background check after seven years?
Absolutely not, but it may come off your PRIVATE background check (as I explain below).
Tons of people mistakenly think that it does, and repeat this falsehood to one another. A week ago, I read it written by a lawyer online. Reading that bit of confusion inspired me to write this article.
Bottom Line Upfront - It’s a Misconception
Here’s the unpleasant truth upfront: generally, an arrest record will not fall off an FBI background check, unless you take steps to remove it, or recharacterize it with an update. Updating or “rehabilitating” your FBI background check after a state-level conviction typically has a detailed process associated with it.
Those arrests are typically only removed or updated after some form of post-conviction relief like an expungement, record sealing, vacatur, etc. The names of these forms of post-conviction reliefs vary from state to state.
Most importantly, you can only remove an arrest record from an FBI background check if you're entitled to do so under the law of the state in which you were arrested. Click here for an explanation and example of how FBI background check corrections are made.
At Malakouti Law, we help people update their FBI background checks. Book a consultation here to get started.
Two Reasons for the Misconception
In my opinion, there are two big reasons for the misconception that FBI background checks drop arrests after seven years.
Reason 1 - Fair Credit Reporting Act
The FCRA has been protecting people with unfair credit reports and background checks since 1970
The first source of the misconception is the Fair Credit Reporting Act (“FCRA”) which was passed in 1970.
The FCRA is a federal law that prohibits credit reporting agencies from reporting arrests that did not lead to a conviction, after seven years have passed since the arrest. These “credit reporting agencies” include the big ones most people know about such as:
Experian
Equifax
Transunion
However, in the FCRA, the “credit reporting agencies” mentioned also include background check companies for when someone applies to a private-sector job or for an apartment lease.
Some of these employment background check companies include:
HireRight
Checkr
FirstAdvantage
ADP
Goodhire
The “credit reporting agencies”also rental/apartment leasing background check companies, such as:
RealPage
Corelogic
Smartmove from Transunion
On-Site
Appfolio
Turbotenant
The FCRA imposes stiff penalties on credit reporting agencies, background check companies and even employers that violate these restrictions. However, the FCRA does not apply to FBI background checks.
Most importantly, oftentimes the victim does NOT have to pay out of pocket for an attorney to represent them. This means that if you have a claim, you can end up asserting that claim with the help of a skilled attorney for FREE. The FCRA makes the credit reporting agencies pay your lawyers' bill through attorney fees provisions.
Note: If your credit report or background check for employment has a mistake on it, leave your contact info here with the words CREDIT REPORT in the message and we’ll have you screened for FREE to see what can be done for you.
It’s easy to see how people could mistake this federal law restricting PRIVATE background companies for having an effect on the FBI background check. The FBI background check is generated by the federal government, specifically the Department of Justice (“DOJ”).
Reason 2 - State Laws Regulating Reporting of Arrests
Your are protected in your credit reports and employment background checks by the FCRA
Second, this confusion exists because there are many states that have consumer protection laws requiring PRIVATE investigation companies that run background checks to stop reporting certain information that is older than seven years.
Remember, a person does not have one single background check or criminal record. Your “criminal record” is a decentralized document.
These state laws act to keep those private background checks (for example as might be used by a prospective employer) from reporting arrests and some other negative information (ex: bankruptcies, paid tax liens). California is an example of a state that has such a law.
California's law obligates PRIVATE investigative companies (like the ones listed above) from producing background checks with arrests and certain other information that is older than seven or ten years. You can leave your information with us here to be screened
Note: click here to leave a message to be screened for FREE.
Unfortunately, these state laws dealing with private background check companies have nothing to do with reporting of arrest data to the FBI Criminal Justice Information Services (“CJIS”). The FBI CJIS is not obligated by these state consumar protection laws to stop reporting an old arrest
Summary - “7 Year Rule” Exists for Private Background Checks, not the FBI
If you're an American applying for second citizenship or residency, you'll probably need to obtain and furnish an FBI background check. You might even have to apostille it too.
Sample of a clean FBI background check ("identity history summary)" that's clean as a whistle
If you’ve had an arrest, it will not drop off your FBI background check automatically after seven years.
However, you may be entitled by law to have that arrest, after seven years automatically be removed from your:
Credit report from Transunion, Experian, Equifax, etc.
Employment background check from HireRight, Checkr Inc., FirstAdvantage, ADP, Goodhire, etc.
Rental background check from RealPage, Corelogic, Smartmove from Transunion, On-Site, Appfolio, Turbotenant
To know if the arrest can be removed or updated from your FBI background check requires a state-specific analysis.
You need to find out if you're legally entitled to have the arrest taken off the FBI background check or have mitigating language added below, if possible as can be done with an expunged California conviction.
And then you will likely have to take steps to get that done.
Consult with Malakouti Law
At Malakouti Law, we help people (especially Americans applying for second citizenship) evaluate their FBI background check, to get a real-deal answer on whether it can be improved in any way.
If it can be improved or updated, we take people through that process from start to finish. Click here to request a consultation and get started.
Each immigration and citizenship case is particular and you should consult with a qualified immigration and citizenship lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.