Will we be denied?

[JohnThailandJohn 1]

I am a US Citizen and my wife was originally denied a tourist visa in 2009 or 2010 visa years ago because of my wife;s criminal record. We then got married in 2010. We have just had everything approved from NVC and she is scheduled for her appointment. We submitted her police report to NVC but there was no court records to submit. I am wondering thoughts on if we will be denied. Below is the translated text of her police report:

This letter is to certify that XXX (removed), Thai nationality, is deemed not to have a serious criminal record nor is she considered a security threat, however she has 1 minor criminal record on file.

She pleaded guilty of forged and used forgery official document.

Case result: this case was adjudicated at the Criminal Court. The judgement was 1 year in prison and 2,000 Baht fine but she confessed, pleading guilty to the charge which be useful for the consideration, then the sentence was thereby reduced by hald to 6 months in prison and 1,000 Baht fine. Anyway she had never pleaded guilty, then the jail sentence was suspended for 2 years. She had 2 years probation, reported 4 times in 1 year to Probation Office, according to the Black case no. XXXX (removed), Red case no. XXXX (removed) dated 25 Jan. 2005.

However, the aforementioned case was absolved pursuant to the Act of Parliament, on the occasion of celebrating His Majesty the King Bhumibol Adulyadej's 80th Anniversary on December 5th, 2007. Thereby, the accused in this case now considered not guilty.

My understanding is the crime needs to be one which could result in over a 1 year sentence. It doesn't specifically address this in the police report but rather speaks to the original sentence which was suspended. I also have read that pardon's by themselves may not mean anything unless it is on legal grounds to throw out the conviction. Lastly, I have read the time frame of the crime needs to be 15 years ago to be waived.

Just wondering any thoughts or advice? We will find out soon enough but thought I would check-in here to get more information that might be helpful.

Note: I typed the above from the official translation. I may have, but don't this I did, make some typos. I believe it is just not easy to translate from Thai verbatim without it appearing a bit funky.

Edited February 8, 2015 by JohnThailandJOhn

[JohnThailandJohn 1]

Also, do the officials at the embassy have discretion with this type of thing? Long story short my wife got duped into something but she ended up doing something wrong. She is certainly no criminal and nobody who speaks to her would ever think this. She pleaded guilty almost immediately to get this behind her quickly since there was no real punishment and didn't know it would come back to bite her in the behind later.

[Hypnos 6,576]

Forgery is usually considered a CIMT.

I'm not sure how that will interact with the official finding of "not guilty" due to a blanket commutation of sentences due to the king's birthday.

She may be eligible for the petty offence exception, as you say. To qualify she would have had to have been sentenced to no more than six months' imprisonment, and the maximum punishment she could have been sentenced to was no more than one year's imprisonment.

http://www.nolo.com/legal-encyclopedia/when-the-petty-offense-exception-excuses-crime-moral-turpitude.html is a good explanation of the exception.

Edited February 8, 2015 by Hypnos

[Boiler 45,499]

As described I would expect a waiver to be required.

[Jawaree 717]

I am almost sure a waiver is required, USCIS/DOS will go by the time

she could have received and any probation or parole time is included

especially since it was official docs. Moral Turpitude, With a good hardship

package she may very well get the waiver approved...You will need a waiver atty.

Pardoned and vacated sentences do not count unless the court made

a mistake in original charge and put it in writing....however those pardoned

and such a proof is shown will get a favorable point in decision

[JohnThailandJohn 1]

Thanks, not sounding too promising. I was thinking 50/50 before but now am looking for a good waiver attorney.

[Hypnos 6,576]

If the maximum possible punishment for her crime was greater than one year in prison then she'll need a waiver, since the petty offence exception will not apply. If the maximum possible punishment was a year or less in prison then she will probably be covered by the petty offence exception.

You should investigate the exact statute she was prosecuted under and discern the maximum punishments.

[Jawaree 717]

Google and call Lizz Cannon (free phone consult)

she will give you the str8 answer on this matter, great

waiver atty

[JohnThailandJohn 1]

Google and call Lizz Cannon (free phone consult)

she will give you the str8 answer on this matter, great

waiver atty

Thanks, have you used her? I have been looking at numerous attorneys online to use with the expectation I will need a waiver including Liz and have filled out her form online to contact me and will call Monday. I intent to speak to interview a number of attorneys. Obviously my goal is to get a good one but I also want one that will handle things quickly. What I don't want is an attorney who doesn't have the resources to handle my case quickly. I intend to be very active and prompt in providing the attorney with anything they need.

[jan22 3,055]

The same ineligibilities for refusing a non-immigrant visa apply to immigrant visas (whether they can be waived, however, differ). Therefore, if she was denied for a visitor visa because of the conviction, she will be denied for the immigrant visa and then need to apply for the waiver. (If that was the reason for the denial, her ineligibility will already appear in their computer system.) Doesn't matter that the King changed the conviction or not -- as shown by the Embassy already denying her after he had done so. Good luck...and really good that you're preparing ahead of time.

[Hypnos 6,576]

Lizz Cannon is a highly regarded attorney, particularly in the area of waivers. You can pretty much take whatever she tells you to the bank.

Edited February 8, 2015 by Hypnos

[JohnThailandJohn 1]

The same ineligibilities for refusing a non-immigrant visa apply to immigrant visas (whether they can be waived, however, differ). Therefore, if she was denied for a visitor visa because of the conviction, she will be denied for the immigrant visa and then need to apply for the waiver. (If that was the reason for the denial, her ineligibility will already appear in their computer system.) Doesn't matter that the King changed the conviction or not -- as shown by the Embassy already denying her after he had done so. Good luck...and really good that you're preparing ahead of time.

Thanks. They tried really hard to grant her a tourist visa and got a lot of people involved at the embassy for when she was there. They had her waiting hours as they discussed. And they actually ended up taking her passport and mailing it back without the visa but rather the denial. This is why I was wondering if the embassy has any discretion since technically the paper now says she is ruled not guilty. I do understand that the law states the case being thrown out would need to be due to some legal reason to over through the conviction but again just wondering if they could in their power grant her the visa without the waiver.

Not that it matters but she is just a super sweet person people generally like and trust. Her conviction was for forgery because she was scammed by an employment agent that promised her a good job in the UK and would take care of the work permit / visa. In the end it was a forged passport and she got caught at the airport. Not at all saying it was without guilt but she got duped and by the time she realized she has spent all her savings and was convinced there would be no problems. The incident happened in 2004 and she plead guilty in 2005. Although just over ten years ago, it doesn't meet the requirements of being over 15, so will have to provide a hardship waiver. Again, just wondering if embassy officials have any discretion (is there any hope she can be approved). When she applied previously there was not the police report with the Pardon.

[JohnThailandJohn 1]

Lizz Cannon is a highly regarded attorney, particularly in the area of waivers. You can pretty much take whatever she tells you to the bank.

Do you know if there is a way I can search users here who have used her?

She is sounding very competent and like the person maybe I should go with but one thing very important to me after having a very good waiver attorney is one who has the ability to work my case quickly. I don't want to be part of a backlog at a law firm.

[Boiler 45,499]

She applied for a B2 but the consulate did not recommend a waiver?

[JohnThailandJohn 1]

She applied for a B2 but the consulate did not recommend a waiver?

They don't seem to want to issue waivers for tourist visas. So, they denied her also on the grounds of not having ties to prove she would return. This would first need to be overcome before they would consider a waiver and there was no way they would allow her to overcome this with the police problem. I went round and round with them on this until it finally became clear they were never going to allow her to prove ties and the embassy official recommended we do a fiance visa (at the time we were not married).