A background issue - to postpone or not to postpone?

[kanda 0]

Hey guys,

My case has gotten more complicated than I ever could have imagined. My fiance had a background incident relating to a very unfortunate accident that occurred in 1997. We assumed that since the case was closed and it doesn't show up in his background check, we could mention it in the application, show proof that the case was closed and the rest of his record is spotless, and it would be alright.

However, we consulted with a lawyer and were told that might not work out. She advises that we postpone our interview, which is scheduled for next Thursday, until we can get more papers together and she is able to analyze them.

I would greatly prefer to follow her advice, but my poor fiance has been running around like a chicken with his head cut off for months, trying to gather all of the documents needed for the interview. Sitting at lines in banks and various offices has become his full-time job and he just wants it to be over with. We aren't planning for him to travel to the US until June, and he would love to work before that - he has job offer that starts April 11.

His position is that if he is going to get rejected by the embassy, he will get rejected - regardless of the lawyer's analysis. We lucked out and ended up with a very reputable lawyer. But he'll go in to the interview with the same sentencing papers, whether or not he hears her advice first.

Any thoughts on this? Especially from the standpoint of the usefulness of legal advice in a situation like this (full disclosure: I'm hoping you'll say to listen to the lawyer, but if you have a different opinion, I'd like to hear that as well!).

[Brother Hesekiel 2,236]

What do I think about the incident "X?"

Well, without knowing the value of X, the math ain't gonna work, now, does it?

Generally speaking, since your attorney knows X, he or she is the only one able to give advice here.

[kanda 0]

Very true! Although I know each case is unique, I'm hoping someone out there will have some experience with going through the K1 interview process without a 100% clean slate.

(My fiance is a very good person; this does not involve drugs/assault/organized crime/any intentional harm to others. It does involve a tragic accident which resulted in probation - no judicial jail time - along with dismissal from his post as a policeman and discipline within the police).

Edited April 1, 2011 by kaitlynva

[UKGirl123 24]

I hate to say it but without giving more detail there limited advice we can give you as the majority of these things are dependant on what it is.

I would say thought that you do have to disclose it, even if closed, after all it is on your fiances record so your lawyer seems to be right in saying that you may need some further things in order to prepare for this.

Honestly, we are very understanding people here and most crimes have been asked about...I have even seen people asking for advice for obtaining visas with sex crimes / assault crimes on their record.

I wish you the best but if you are unwilling to gives us more information, I do not know what else we can do for you.

[JimVaPhuong 4,863]

You have a reputable attorney with a lot more information about this than we have. Instead of asking for advice here you should be asking your attorney what is the purpose in postponing the interview, and what do they intend to do differently based on what they learn about this "tragic accident". Perhaps they want to see if the "accident" is an inadmissible crime, and if a waiver might be required. Most attorneys would want to have the waiver request prepared and ready to submit at the interview after the visa is denied. That would be an understandable reason for postponing the interview.

[kanda 0]

Okay... the internet still weirds me out, but I don't know where else to turn! Glad you guys are here.

My fiance was serving as a sub-official (bottom level) in the police in 1997; he was 21. This isn't an accurate story, but it's what's in the documents that we'll have to present:

According to the court ruling, while serving on night duty he and his co-guard left their posts and went to drink. While "at the bar", he still had his gun on him. He was accosted by another man, and foolishly grabbed for his gun. The man's actions threw him off balance, resulting in the man being shot and killed.

My fiance was convicted of manslaughter ("homicido culposo", judicial sentence, 1 year probation, not on background but we've always had intention to report) and abandonment of his police duties plus crime against honor and decorum (these shows up on his military antecedents; he completed a 6 months sentence in a specialized police jail).

Thanks for any help.

Thank you very much for this information about inadmissible crimes and waivers. This is something I didn't know about and will look into!

[UKGirl123 24]

I am unsure of whether or not that would need a waiver but what I am sure about is that the USCIS are going to want to know about it in detail.

In my OPINION I would say it should just be some extra hoops you have to jump through but I would think you would be ok. However with it being termed as manslaughter I just don't know.

I think you have done the right thing in speaking to a lawyer. It may be worth taking advanyage of some free lawyer consultatons elsewhere just to check what your lawyer is saying. For something like this I think a lawyer is the best way forward.

Good luck.

[JimVaPhuong 4,863]

What is the maximum possible sentence for each crime?

[kanda 0]

I'm not sure about the maximum for "homicidio culposo" in Peru, but in news reports it's not uncommon to see people receive 4 years with that conviction.

The laws for police sentencing have changed so drastically since that time that I'm not sure what to look at. The 2006 code states that with a sentence under 2 years, he should not have been separated from his police duty... The 2006 maximum for abandonment of post is 4 years and 90 to 190 days (quite specific!), and I'm not seeing a general "crime against honor and decorum" listed in 2006.

[NigeriaorBust 4,087]

You need to heed the advise of your lawyer. It may have been an accident but he was convicted of manslaughter. That is probably enough to make him inadmissible. Doing to an interview unprepared is asking for a denial. The crime is serious no matter how remorseful your fiance is. It would be foolish not to be totally prepared at the interview.

You need to heed the advise of your lawyer. It may have been an accident but he was convicted of manslaughter. That is probably enough to make him inadmissible. Doing to an interview unprepared is asking for a denial. The crime is serious no matter how remorseful your fiance is. It would be foolish not to be totally prepared at the interview.

[kanda 0]

Thanks again, so much, for the information about admissibility and waivers. It has been extremely helpful.

[Peter&Jaime 1]

I recommend you jump through those hoops and listen to the lawyer. While the Lima embassy is not as difficult as many others I have heard cases where visa applicants have been put through the ringer for lesser things. Good luck.

[JimVaPhuong 4,863]

I'm not sure about the maximum for "homicidio culposo" in Peru, but in news reports it's not uncommon to see people receive 4 years with that conviction.

The laws for police sentencing have changed so drastically since that time that I'm not sure what to look at. The 2006 code states that with a sentence under 2 years, he should not have been separated from his police duty... The 2006 maximum for abandonment of post is 4 years and 90 to 190 days (quite specific!), and I'm not seeing a general "crime against honor and decorum" listed in 2006.

Ok, the "homocidio culposo" and abandoning his post are both inadmissible crimes. There would be an exception if the maximum sentence was one year or less, and the imposed sentence was six months or less. An I-601 hardship waiver may be possible, but not if the consulate concludes that "homicidio culposo" constitutes murder. No waiver can be granted for someone convicted of murder or torture, or conspiracy to commit murder or torture.

I would listen to your attorney here.

[baron555 934]

Very true! Although I know each case is unique, I'm hoping someone out there will have some experience with going through the K1 interview process without a 100% clean slate.

(My fiance is a very good person; this does not involve drugs/assault/organized crime/any intentional harm to others. It does involve a tragic accident which resulted in probation - no judicial jail time - along with dismissal from his post as a policeman and discipline within the police).

Is the lawyer very experienced with immigration matters concerning this consulate?

If so, then follow their advice. If not really, then go for the interview and take your chances. Worst case is you're denied and have to file again once you get more documentation or better case is they postpone the visa and ask for more information.

[katiemanny 64]

Was it an accident, what if it wasn't? a waiver of extreme hardship will be needed, this individual is inadmissible to the US. The US Consulate might look at the conviction differently.

Edited April 1, 2011 by katiemanny