Police Certificate Required or not?

[Michael2017 368]

Hi,

 

I was employed by a company in country A (EU) that send me to work to project sites in construction in the bordering country B( non EU).

This was for 2.5 years, but I have not had my own residence on country B, only stayed in company provided lodging.

Also, I only commuted. This means I went every weekend to country A where my primary residence is.

I talked to a paralegal, and he thinks that the strict requirements of residence in country B are not met, therefore,

I don`t need to add it to the DS260 and do not need police certificates from country B. 

 

I have mentioned the commute situation in my I-130 package.

 

I have a work visa in my passport for country B and a lot of border crossing stamps.

 

What is your opinion, police certificates and DS260 mention required or not?

Police certificates from that country B are really hard to get now once i dont work there 

anymore so I would love to avoid them anyways

 

Edited December 12, 2017 by Michael2017

[payxibka 10,045]

My opinion is that you were not continuously there for the prescribed period of time and therefore a certificate is not required

[geowrian 22,337]

I think the difference here is that he was only commuting to the country and never actually "lived" there.

True, legal residency is not required for a police certificate to be necessary. Only physical presence is needed.

 

That said, commuting back just for the weekends is (IMO) insufficient to justify that the OP's domicile was in country A during that period. Since the majority of their time was in country A for 2.5 years, I would err on the side of getting the police certificate.

I'd reach a different conclusion if they commuted from country A to country B every day (or otherwise spent more time in country A than country B).

Edited December 12, 2017 by geowrian

[Michael2017 368]

2 minutes ago, geowrian said:

I think the difference here is that he was only commuting to the country and never actually "lived" there.

True, legal residency is not required for a police certificate to be necessary. Only physical presence is needed.

 

That said, commuting back just for the weekends is (IMO) insufficient to justify that the OP's domicile was in country A during that period. Since the majority of their time was in country A for 2.5 years, I would err on the side of getting the police certificate.

Thanks. I did take police certificates at the end of my work there, just in case, it was very hard. 

 

However,  now they are 

a) outdated

b) one says it is issued only for employment purposes and not valid for other reasons

 

 

to a) As I have not lived/worked in country B after the date the police certificate was issued, I assume sending an outdated certificate

should not create a problem. I think this is what NVC is saying on their website for police certificates.

 

to b) I think this must be some local thing, but the US gov will be interested that there is "no record or conviction" or will they refuse

to accept a police certificate that has such a statement?

 

Regarding domicile, it may also be important that I worked for a company in country A, so my employer was not in country B.

 

Thanks!

[geowrian 22,337]

Just now, Michael2017 said:

to a) As I have not lived/worked in country B after the date the police certificate was issued, I assume sending an outdated certificate

should not create a problem. I think this is what NVC is saying on their website for police certificates.

 

to b) I think this must be some local thing, but the US gov will be interested that there is "no record or conviction" or will they refuse

to accept a police certificate that has such a statement?

Correct. If you have not entered the country since then, then the police certificate should still be accepted. I'm unsure on point b), but I'm not inclined to believe it's an issue. My now-wife got one from KSA with the same wording when she exited after her contract.

[payxibka 10,045]

5 minutes ago, geowrian said:

I think the difference here is that he was only commuting to the country and never actually "lived" there.

True, legal residency is not required for a police certificate to be necessary. Only physical presence is needed.

 

That said, commuting back just for the weekends is (IMO) insufficient to justify that the OP's domicile was in country A during that period. Since the majority of their time was in country A for 2.5 years, I would err on the side of getting the police certificate.

I'd reach a different conclusion if they commuted from country A to country B every day (or otherwise spent more time in country A than country B).

I travel for a living.  I leave on Sunday night and I return on Friday night.  I am out of my state of residence for 5 days each week.  I have been commuting to NJ for the last 14 months.  I do not consider myself a NJ resident even though in the last year plus I have spent more than 300+ days there with only 100+ in my home state.  Never had a continuous stay of more than 5 days.

[geowrian 22,337]

8 minutes ago, payxibka said:

I travel for a living.  I leave on Sunday night and I return on Friday night.  I am out of my state of residence for 5 days each week.  I have been commuting to NJ for the last 14 months.  I do not consider myself a NJ resident even though in the last year plus I have spent more than 300+ days there with only 100+ in my home state.  Never had a continuous stay of more than 5 days.

Right...but this isn't an issue of residency. The length of a continuous stay is not the issue either.

Edit: The actually wording used to require the PCC is "lived in", which isn't clearly defined. My logic is that if you are physically present there then you may be considered to have had domicile and therefore met this test. I do see the counterpoint that domicile is about where you actually live and think there is an argument to be made for that. hence why I think it's better to err on the side of caution. But that's my $0.02.

Edited December 12, 2017 by geowrian

[Michael2017 368]

2 minutes ago, geowrian said:

Correct. If you have not entered the country since then, then the police certificate should still be accepted. I'm unsure on point b), but I'm not inclined to believe it's an issue. My now-wife got one from KSA with the same wording when she exited after her contract.

 

Great to hear that this wording was accepted! You do a great job on this forum really as I see many of your useful posts. You seem to be one of the best informed users here, great service to the community really!

 

Now what to do with the DS260? For the I130 g325a I added a note that I was commuting and gave the addresses in Country B.

The DS260 instructions clearly state that only places where a residence was taken up should be added. I was not going to add the 

addresses of country B to my DS260, I even dont know if they system allows 2 addresses for the same time.

 

Based on this information here, I would add a letter explaining that I dont consider that I resided in country B, but provide the Police certificates

of country B as additional optional information. Does this sound right?

[payxibka 10,045]

8 minutes ago, geowrian said:

Right...but this isn't an issue of residency. The length of a continuous stay is not the issue either.

I disagree...  Continuous stay is the basis for determining residency.  Look at the FAM.  It doesn't say slept, is says residence.

 

9 FAM 504.4-4(B)  (U) Police Certificates

(CT:VISA-359;   05-02-2017)

a. (U) Police Certificate From Country of Current Residence or Country of Nationality:  An applicant 16 or older must present a police certificate, if obtainable, from his or her country of current residence, if residence exceeds six months.  Such an applicant must also present a police certificate, if obtainable, from his or her country of nationality, if different from the country of current residence and if residence in the country of nationality exceeds six months.  (See Visa Reciprocity and Country Documents Finder for availability of police certificates for individual countries.)

b. (U) Police Certificate From Country of Previous Residence:   Police certificates are required from any countries of previous residence in which an applicant has lived for one year of more since attaining the age of 16.  If an applicant has presented a comprehensive police certificate fully meeting the requirements of 22 CFR 42.65(c) from the applicant’s country of principal residence, you need not require a police certificate from other places of former residence, provided the applicant presents other satisfactory evidence of good conduct.  For example, it has been held that proof of membership in or affiliation with a reputable religious organization in a religious capacity during periods of foreign residence may be accepted as such evidence.  However, if you have reason to believe that a police or criminal record which would render the alien ineligible to receive a visa might exist in the foreign country you must require the alien to obtain the police certificate.  If the police certificate is not obtainable from the local authorities, the alien must present other convincing evidence that he is not ineligible to receive a visa. (See Visa Reciprocity and Country Documents Finder for availability of police certificates for individual countries.)

c.  (U) Police Certificates From Countries Where the Applicant Has Been Arrested:  If the applicant has ever been arrested, a police certificate from the country where the arrest took place should be provided, if obtainable.

Edited December 12, 2017 by payxibka

[geowrian 22,337]

12 minutes ago, payxibka said:

I disagree...  Continuous stay is the basis for determining residency

I added an edit to my above post....I disagree, but do see a valid counterpoint. I would still err on the side of caution.

If somebody were to travel abroad for even 1 day at least once a year, they would never accumulate 12 months of continuous stay.

 

INA 101(a): "(33) The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent."

Under this definition, where you physically reside is what matters ("principal, actual dwelling place"), not where you intend to live or own property / rent, or how many days you continuously stay there.

 

18 minutes ago, Michael2017 said:

Based on this information here, I would add a letter explaining that I dont consider that I resided in country B, but provide the Police certificates of country B as additional optional information. Does this sound right?

That's what I would do personally, although I am not certain enough to say that's definitely the correct option.

Edited December 12, 2017 by geowrian

[payxibka 10,045]

I never said you needed a continuous stay of 12 months.  You would couple together the continuous stay with the concept of principal abode.  I would be of the opinion that principal abode occurs even as early as 30 days continuous stay

[Michael2017 368]

9 minutes ago, payxibka said:

I never said you needed a continuous stay of 12 months.  You would couple together the continuous stay with the concept of principal abode.  I would be of the opinion that principal abode occurs even as early as 30 days continuous stay

Lawandboarder.com defines general place of adobe the country where you sleep most nights in a year.

[payxibka 10,045]

OK.  Good to know

[Ryan H 3,812]

Moved from Progress Reports to Process & Procedures.