with a criminal record

[kevest 0]

I am new here.Please bear with me for a lil intro. I am a US citizen and my husband is a vietnamese. I gave birth to a son in HCM and came back to the US with my son 4 months ago and I applied for the immigration visa for my husband and just received both the approved I130 and I129F letters. Now what bothers me is when we were still dating,( we met in the US while he was on his student visa ) I pressed charge on him and he was charged with second degree assault, and he pleaded guilty when he went to court. The final disposition was PBJ. SO my question is "will the criminal record affect his chance of getting the visa in Vietnam? How tough is the HCMC consulate when they interview beneficiary with a background like this? and how do the officer define PBJ since I heard it varies by country. Anyone who knows anything about that kinda issue, please advice !

[YuAndDan 153]

Felt like daja vous see: http://www.visajourney.com/forums/topic/295751-criminal-record-hcmc-consulate/page__p__4479754

Note there is no longer a K-3, USCIS ties the I-129F and I-130 together, approve together, and sends to NVC where NVC closes the I-129F and proceeds with the I-130. You will be doing paperwork with NVC.

This should come up when USCIS/NVC/Consulate does name checks, It may or may not cause issues at the consulate.

Is his only offense, and no jail time? If so then perhaps will not cause a problem.

SEE: http://travel.state....ies_1364.html#1

[confusedasheck 21]

If I was looking at your file, I would wonder a woman would want to marry a man she pressed charges against. That seems more of a red flag to me. If I was a CO, I would ask why.

[kevest 0]

Felt like daja vous see: http://www.visajourney.com/forums/topic/295751-criminal-record-hcmc-consulate/page__p__4479754

Note there is no longer a K-3, USCIS ties the I-129F and I-130 together, approve together, and sends to NVC where NVC closes the I-129F and proceeds with the I-130. You will be doing paperwork with NVC.

This should come up when USCIS/NVC/Consulate does name checks, It may or may not cause issues at the consulate.

Is his only offense, and no jail time? If so then perhaps will not cause a problem.

SEE: http://travel.state....ies_1364.html#1

Thanks for you info. This is his only offense, and no jail time. I checked out the link you provided and it states it is inadmissible if the crime is involving moral turpitude. Second degree assault is def related to MT, but then he did not serve jail time, so what's that supposed to mean? should i be worried?Should i file the hard time waiver or whatver? Thanks

[VinhBao MyTam 3]

According to Wikipedia, simple assault is not a crime involving Moral Terpitude. Some forms of assault may be.

http://en.wikipedia.org/wiki/Moral_turpitude

Regardless of sentence he received, he admitted committing the crime, which is a disqualifier (if it WERE considered moral turpitude)

http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html#1

Do you know the MAXIMUM SENTENCE in your state for simple assault? Because if the max sentence is under 1 year, there is an exemption even if it IS moral turpitude. (Not his actual sentence, but the maximum possible sentence for that crime.)

Hope this helps.

[ScottThuy 140]

I cant say that I agree with that wiki page.. I recall a really big deal that was made as a result of a guy from the UK being denied a visa because of MT as it related to a DUI... Crimes of Moral Turpitude are a gray area IMO in some respects.. its up to the CBP agent or the individual reviewing the file on what they do. I would expect that a waiver will be required in this case... as if HCMC wasn't picky enough already, adding this to the case won't make things any easier... best of luck..

[BinhJerome 14]

I am new here.Please bear with me for a lil intro. I am a US citizen and my husband is a vietnamese. I gave birth to a son in HCM and came back to the US with my son 4 months ago and I applied for the immigration visa for my husband and just received both the approved I130 and I129F letters. Now what bothers me is when we were still dating,( we met in the US while he was on his student visa ) I pressed charge on him and he was charged with second degree assault, and he pleaded guilty when he went to court. The final disposition was PBJ. SO my question is "will the criminal record affect his chance of getting the visa in Vietnam? How tough is the HCMC consulate when they interview beneficiary with a background like this? and how do the officer define PBJ since I heard it varies by country. Anyone who knows anything about that kinda issue, please advice !

Usually the criminal reccord is done on the petitioner which is you not him. If this charge is a felony they would have a serious problem with it and it MIGHT come up at the interview. To keep immigrants safe they look very poorly on anyone convicted of a crime against a spouse (spousal battery/domestic violence), as well as rape and murder. If the petitioner has one of these there is a very high chance you will NOT get a visa. The last thing they want is a person to come over to the USA and have a husband or wife start hitting on them and turning them into hostages/slaves or even killing them.

[VinhBao MyTam 3]

Usually the criminal reccord is done on the petitioner which is you not him. If this charge is a felony they would have a serious problem with it and it MIGHT come up at the interview. To keep immigrants safe they look very poorly on anyone convicted of a crime against a spouse (spousal battery/domestic violence), as well as rape and murder. If the petitioner has one of these there is a very high chance you will NOT get a visa. The last thing they want is a person to come over to the USA and have a husband or wife start hitting on them and turning them into hostages/slaves or even killing them.

Jerome, what you say is true, but, and as is the case at hand, there are strict restrictions on people with certain criminal records being allowed into the country at all.

Scott, I definitely agree with you that it is a gray area. But the OP said "definitely" MT and I wanted to point out that it's not definitely.

Any word on what the max penalty for assualt is in your state OP. Or what state are you in and I can try to look it up. (What state did it happen in?)

[kevest 0]

Jerome, what you say is true, but, and as is the case at hand, there are strict restrictions on people with certain criminal records being allowed into the country at all.

Scott, I definitely agree with you that it is a gray area. But the OP said "definitely" MT and I wanted to point out that it's not definitely.

Any word on what the max penalty for assualt is in your state OP. Or what state are you in and I can try to look it up. (What state did it happen in?)

I live in Maryland. I googled it online max penalty for second degree assault is 10 years. But my husband's disposition is PBJ, to some extent it is pretty lenient. So does the penalty make a difference to the consulate officer? Thanks!

[BinhJerome 14]

Jerome, what you say is true, but, and as is the case at hand, there are strict restrictions on people with certain criminal records being allowed into the country at all.

Scott, I definitely agree with you that it is a gray area. But the OP said "definitely" MT and I wanted to point out that it's not definitely.

Any word on what the max penalty for assualt is in your state OP. Or what state are you in and I can try to look it up. (What state did it happen in?)

Who cares about the maximum sentence, they do not allow murderers, sexual crimes, and domestic violence into the United States. If you have one of these three crimes on your record then it is not happening. In some states Domestic violence is still not considered a felony. If the charge was a felony then it will come up. This check is done on the petitioner, since he is in Vietnam he will have his police clearance done in Vietnam which would not show a US arrest record, but...... Since he was convicted in the United States while ON a VISA there might be a record of it on his file, if this is the case and because it involves assault on the petitioner they very well might consider it domestic violence simply because she called the cops on him and he was arrested. That being said if it comes up they will very likely deny the visa regardless if it was only a 12 month maximum sentence. The last thing that the US consulate would want is to allow fraud into the united states, and even worse than that to allow someone into the united states with a history of violence against the petitioner and then have the benificary do another crime causing the death of said petitioner which on file has already called the police for her protection.

This is what it boils down to at HCMC, nothing else matters. If the HCMC consulate finds out about his crime it will be a long road with lots and lots of explaining period. No waiver will do them justice, it will come down to the interviewing CO and what they feel. You can state laws and regulations all you want, but the fact is they can and DO deny for reasons that the law clearly says they cant. Look how many people have been denied for 1 trip, for not ENOUGH photos, there is no law that says you must make more than one trip, no law that says you must have 100 photos in different clothing, the laws/regulations clearly state the oppisite, all you MUST do is prove you have met ONE time wihin the previous TWO years of filing, and PROVE you have met in person. So try to argue that you had a waiver or that what he did years ago to his girlfriend was an accident and that he felt bad about it, do you really think this will go over with the CO??

OP in my honest opinion, I would NOT file a waiver I would NOT mention what happened at all, but I WOULD be prepared to answer questions about it. If his Vietnam police background check comes back clean drop it and dont say anything about the conviction in the US if you do you are giving them a reason to deny based on safety concerns for YOU. Depending on the rest of your case if this does not come up at the interview then you will more than likely be fine on your visa application.

On another note, there are many studies that have been conducted all over the world, most people that abuse ones spouse/girlfriend do it repeatidly, not all end in death, but most about 85% continue to abuse their loved ones in one way or another so what ever happened that night, it might happen again so what I suggest is to make sure you do love him and know that this might happen again no matter how much he says that "I would never do that again, I am so so sorry, I love you so much, please forgive me It wont happen again I prommise" There is the chance it wont, but be prepared if it does happen again. Jerome

[ScottThuy 140]

Did you complete a DS230? if so what was the response on questions 40 b & 41?

[VinhBao MyTam 3]

Who cares about the maximum sentence, they do not allow murderers, sexual crimes, and domestic violence into the United States.

This is what it boils down to at HCMC, nothing else matters. If the HCMC consulate finds out about his crime it will be a long road with lots and lots of explaining period. No waiver will do them justice, it will come down to the interviewing CO and what they feel. You can state laws and regulations all you want, but the fact is they can and DO deny for reasons that the law clearly says they cant. Look how many people have been denied for 1 trip, for not ENOUGH photos, there is no law that says you must make more than one trip, no law that says you must have 100 photos in different clothing, the laws/regulations clearly state the oppisite, all you MUST do is prove you have met ONE time wihin the previous TWO years of filing, and PROVE you have met in person. So try to argue that you had a waiver or that what he did years ago to his girlfriend was an accident and that he felt bad about it, do you really think this will go over with the CO??

Jerome, Those "laws" are the minimum requirements to have a petition approved, not to have a visa approved.

I'm in no way implying that this is just going to be okay. But at least it could be up to the CO instead of dead-in-the-water if this is not classified as moral turpitude. (As for who cares about the maximum sentence... apparently Uncle Sam does if he included that rule.)

As far as your suggestion to ignore it, what I think ScottThuy was getting at earlier in asking about DS-230 is that it straight up asks you if you fall in this category in question 40 and asks in 41 if you've ever been charged, arrested, or convicted of any crime and please explain... so there is no ignoring it. It's either answer truthfully or lie (commit visa fraud).

(Of course having filed K-1, which I believe you did too, I didn't know about the DS-230 and had to look it up based on his comment... so I'm assuming you didn't know that ignoring it would require fraud.)

I mean, Jerome, I'm with you on this, I think the chances are slim-to-none of this being accepted.

By the way, immigration.lawyers.com specifically excludes simple assault from moral turpitude for immigration as well.

http://immigration.lawyers.com/deportation/Grounds-for-Deportation-Moral-Turpitude.html

Based on that, if the charge was simple assault, then if I were filling out the form, I would say NO on 40b, but on 41, there is no ignoring it... and so, IMHO it is not going to exclude him from immigration, but is going to make it EXTREMELY DIFFICULT to get him a visa in HCMC.

[BinhJerome 14]

Jerome, Those "laws" are the minimum requirements to have a petition approved, not to have a visa approved.

I'm in no way implying that this is just going to be okay. But at least it could be up to the CO instead of dead-in-the-water if this is not classified as moral turpitude. (As for who cares about the maximum sentence... apparently Uncle Sam does if he included that rule.)

As far as your suggestion to ignore it, what I think ScottThuy was getting at earlier in asking about DS-230 is that it straight up asks you if you fall in this category in question 40 and asks in 41 if you've ever been charged, arrested, or convicted of any crime and please explain... so there is no ignoring it. It's either answer truthfully or lie (commit visa fraud).

(Of course having filed K-1, which I believe you did too, I didn't know about the DS-230 and had to look it up based on his comment... so I'm assuming you didn't know that ignoring it would require fraud.)

I mean, Jerome, I'm with you on this, I think the chances are slim-to-none of this being accepted.

By the way, immigration.lawyers.com specifically excludes simple assault from moral turpitude for immigration as well.

http://immigration.l...-Turpitude.html

Based on that, if the charge was simple assault, then if I were filling out the form, I would say NO on 40b, but on 41, there is no ignoring it... and so, IMHO it is not going to exclude him from immigration, but is going to make it EXTREMELY DIFFICULT to get him a visa in HCMC.

The DS 230 is an immigrant visa form, I thought they were doing a K1 visa form which is a non immigrant visa. According to the DS 230 if it is moral turpitude then there is a serious problem. In no way shape or form would i tell anyone to lie, but if they are not required to mention something then DO NOT mention it. This is NOT visa fraud and would never be considered visa fraud, like the militarys dont ask dont tell policy, if asked tell them, if not asked dont tell them.

Those laws are for the minimums, so if the minimum is met according to the law then why are they denying visas based on THOSE LAWS????? This is why there is a class action lawsuit currently going on right now, the consulate is denying people based on 1 trip and not enough photos which by some people is wrong and not legal thus the class action lawsuit, so..... this is why I say who cares about the sentence, if it is not classified as moral turpitude the CO will STILL do what he wants to do, and even if it is not listed or considered as moral turpitude in the United States, the CO can and probably WOULD consider it spousal abuse and deny the visa.

Edited February 19, 2011 by jeromebinh

[ScottThuy 140]

DS230.. Item 4 in Pkt 4.. it is taken to the interview by the beneficiary(K1 & CR1). All applicants must complete this form K1 or CR1... Those responses provided in the DS230 must match data found by DoS in the NVC and consular phases... anything that does not match can be considered material misrepresentation. The CO or clerk recieving the docs will run down that list of responses when the docs are submitted to see if the beneficiary is eligible for a visa. The CO can determine that the beneficiary is not eligible as a result of an arrest and conviction for assault in the US or anywhere else for that matter.

IMO this is one of those times when spending some money on a good immigration Atty, familiar with HCMC, can save a great deal of time and anguish... One wrong step (misrepresentation) can equate to a lifetime ban... its clear that there is a serious issue present in the case and it's not something that I would want to "give things a shot and hope for the best". I guess it all boils down to how important it is for him to be here in the US with the two of you, ever.

[kevest 0]

Thanks for all your replies and opinions. We havnt filled out the DS230, but should I say Yes or No on question 40 and 41? I dont wanna lie but i am still confused

if second degree assault is the same as simple assault.

IF Jerome and VinhBao are right about slim to none chance of getting the visa, should i risk it? I mean I

have a 8-month-old baby and its just very hard for me taking care of the baby by myself in here, let alone if my baby cannot live with his dad ever? Do you guys

think the CO will take this into consideration? Meanwhile, I cant live in Vietnam either. Not only I dont speak any vietnamese I stayed there for 9 months and

honestly its hell of a place to me compared to the living standard in the US.