I-130 approved, I-485 still pending..misrep

[csj50 0]

Hi everyone,

My husband and I had our AOS interview today. In brief, my husband came to the U.S. on a student visa after being arrested in his home country for petty theft (expunged). Because of his arrest, we have been working with an attorney our entire AOS process and immediately submitted an I-601 waiver along with our I-485 and I-130 applications in the event we would have needed one eventually.

However, the officer today was really not concerned about the prior arrest but more of the misrep; my husband TRULY does not remember being asked about any arrest while applying for his f-1, OR he misunderstood the question and thought it implied prison time- he made this very clear to the officer and also the fact that he would not have lied about it. The officer approved our I-130 following the interview but said we would have to wait for our answer for the I-485...obviously.

Our attorney accompanied us to the interview and said she was optimistic about our situation. While our submissions are more focused on the prior arrest rather than the misrep, there is a LOT of evidence in our packet (court dispositions, a lot of medical records and evaluations, the officer hadn't even looked through any of it, really). However, we are a nervous wreck and would like opinions/thoughts from other members of this forum. Many thanks!

[csj50 0]

I'd like to add the officer did not say to file a misrep waiver (yet...and hopefully never)

[Boiler 45,536]

He would have declared his criminal history as part of his F1 application, sounds like a CIMT assuming it was that would have required a waiver, not something you forget.

This is all very basic stuff, sort of surprised your Lawyer has not run through it with you.

Misrep can certainly be the bigger issue.

[csj50 0]

Agreed; a bit annoyed this seems to have been overlooked by our attorney.

[csj50 0]

Boiler, re-read your post and to clarify, the lawyer was very thorough on his arrest; did a lot of research on the country's laws and the U.S., etc., and we filed a waiver in the event they would deem it as a CIMT and would have asked us for one anyway. What was NOT made clear was that the misrep would be brought up.

[Boiler 45,536]

I do not even know what country he is from, but generally Theft is a CIMT. For a non immigrant visa like a F1 it is one of the questions you are asked when applying, an immigrant visa then you get into Police Certificates.

I am sure there are many people who travel on non immigrant visa's who have forgotten their criminal past and probably get away with it. Certainly come across such stories often enough.

Where it can bite you in the but is if you subsequently apply for an Immigrant visa. There are waivers for both immigrant and non immigrant visa's, the I 601 you mentioned. As hopefully your lawyer explained the more issues the better the waiver that is needed.

Misrep is a bigger issue than a minor CIMT, but you never can be certain how it will be looked at.

[chimichanga 3]

Just to clarify, he did not mention it during his F-1, but did he mention it on the I-485?

How did USCIS knew about his arrest? In order for it to be a material misrepresentation, it has to be willful.

[csj50 0]

He didnt remember if he mentioned it or not (the officer was able to look it up and he said "no."); again, he misunderstood the question as he wouldn't have lied, and thought maybe since his case was expunged and didn't have prison time or anything like that he was ok. We disclosed it in the I-485 because to me, the question was very clear if EVER he had been arrested and I made it clear that it didn't matter if it was expunged. Again, he remembers absolutely nothing about the time he filled out the f-1 (it was 8 years ago...he doesn't even remember filling it out to be honest, just going to the embassy. He could have also easily filled out the application in Englush back then, when he barely spoke any)

USCIS didn't know about the arrest until we filed our I-485 and disclosed it.

[chimichanga 3]

A misrepresentation is only material if a lie is told to cover a fact, based on which the visa officer would have denied your husband visa(had he disclosed that to them or on the DS-160 application for his F-1 visa)

How was this issue brought up during your interview? Did the IO ask your husband about it? Please tell some details as to what questions were asked and how both of you and your attorney responded. These things matter as you may not need a waiver at all and you might get approved for AOS without the waiver. Your husband might have overlooked the question about his arrest all together and that would have been an honest overlook/mistake.

Had you not disclosed the arrest on I-485(since it was expunged) do you think USCIS wouldn't have found out about it? These things differ from country to country.

Please update your timeline as well.

Edited April 16, 2016 by chimichanga

[csj50 0]

It was first brought up when the officer asked my husband if he remembers ever being asked about being arrested when filling out the F-1 application; he honest doesn't remember and that's how he answered, and he wouldn't have lied if he had understood the question (also answered the question). Again, he also answered that because the crime was so petty (it was a prank between a friend that got angry and wanted to charge them to get back) and was expunged right away, that he did not think it it felt like it was a "yes" to the have you ever been arrested blah blah...again, he has absolutely zero recollection what was on the application or how he did, but the point is, he would not have lied about it.

we had no intention to lie to the USCIS, if that's what you're implying. As soon as I saw the question about have you ever been arrested, i knew we had to say yes...who are we to think that we could get away? Since I knew that USCIS are very strict (I got a check sent back because I wrote "Dept" and not "Department") that's when we seeked an attorney to make this go as smoothly as possible, especially since none of us know how immigration really works (U.S. Citizen here and can't tell you a thing)!

[chimichanga 3]

No I am not implying that you intended to lie. I am saying that maybe the misrepresentation wasn't material as your husband didn't knew or remember disclosing his arrest. It was not willful. Please keep us posted. Best wishes for your AOS!

[Hypnos 6,576]

You cannot file the I-601 waiver until you've been found inadmissible, either by USCIS or a consular officer, so I'm unsure how you were able to do that.

[Boiler 45,536]

He didnt remember if he mentioned it or not (the officer was able to look it up and he said "no."); again, he misunderstood the question as he wouldn't have lied,

You do not mention it , it is a question you answer in the application and a very straightforward question.

Have you discussed this with the lawyer? Basically you are trying to say I am really stupid and did not understand a very basic question, which does not sit well with a F1 Visa.

[csj50 0]

We sort of discussed with the lawyer after the appointment, but we don't see the point of doing anything right now, since the officer didn't ask for anything further for the moment. We answered the best we could, which was the truth, so I suppose it's in the judgment of the officer.

[chimichanga 3]

What did the IO said in the end of your interview? Could you tell us the questions that were asked?