Beneficiary's Criminal History

[Nyla J 7]

I don't see much about the beneficiary's criminal history being subject to review ... but here's my question :

 

11 years ago my beneficiary (Mexico city) was found guilty of simple possession of marijuana (27 grams). He did no jail time and had probation for 2 years thereafter and attended classes for drug use as part of his sentence. 

 

1. Will this be an issue for him at any stage of this process? 

2. Does he need to obtain documentation regarding his criminal history?

3. Is the beneficiary's criminal history a concern? 

4. Will he be asked if he has a criminal history at the interview?

 

Thanks

[HRQX 4,145]

53 minutes ago, cimking said:

Will this be an issue for him at any stage of this process?

After the petition is approved then he'll have to go through embassy step.

54 minutes ago, cimking said:

2. Does he need to obtain documentation regarding his criminal history?

3. Is the beneficiary's criminal history a concern?

He'll need to submit Police Certificates: https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-5-collect-financial-evidence-and-other-supporting-documents/step-7-collect-civil-documents.html

If you are 16 years of age or older, you must obtain a photocopy of a police certificate from all countries you have lived in using below criteria:

If you ...	AND you...	THEN submit a police certificate from...
Are 16 years old or older	Lived in your country of nationality for more than 6 months at any time in your life	Your country of nationality
Are 16 years old or older	Have lived in your country of current residence (if different from nationality) for more than 6 months	Your country of current residence
Have ever lived in another country for 12 months or more	Were 16 years or older at the time you lived there	The country where you used to live.
Were arrested for any reason, regardless of how long you lived in that city or country, and no matter what age you were		The city and/or country where you were arrested.

Note: Present and former residents of the United States do NOT need to submit any U.S. police certificates.

Important: Police certificates expire after two years, unless the certificate was issued from your country of previous residence and you have not returned there since the police certificate was issued. If at the time of your interview the following three items are all true, you must bring a new police certificate to your visa interview:

• You are more than 16 years old;
• The police certificate submitted to NVC was obtained more than two years ago; and
• You still live in the country that issued the certificate.

56 minutes ago, cimking said:

4. Will he be asked if he has a criminal history at the interview?

Yes. It may also be asked by the Panel Physician as it relates to the doctor's questions about any history of use: https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/mental-health.html "Cannabis and CBD"

[Austin96 15]

22 hours ago, cimking said:

I don't see much about the beneficiary's criminal history being subject to review ... but here's my question :

 

11 years ago my beneficiary (Mexico city) was found guilty of simple possession of marijuana (27 grams). He did no jail time and had probation for 2 years thereafter and attended classes for drug use as part of his sentence. 

 

1. Will this be an issue for him at any stage of this process? 

2. Does he need to obtain documentation regarding his criminal history?

3. Is the beneficiary's criminal history a concern? 

4. Will he be asked if he has a criminal history at the interview?

 

Thanks

It is a possibility that at the interview, stage he will be denied the K1 visa and directed to apply for a I-601 waiver as his simple possession is a CIMT.

[Austin96 15]

29 minutes ago, Austin96 said:

It is a possibility that at the interview, stage he will be denied the K1 visa and directed to apply for a I-601 waiver as his simple possession is a CIMT.

Apologises, see INELIGIBILITY BASED ON CONTROLLED SUBSTANCE VIOLATIONS - INA 212(A)(2)(A)(I)(II) AND INA 212(A)(2)(C) and 9 FAM 302.4-2(B)(2)  (U) Controlled Substance Includes Marijuana

(CT:VISA-1274;   05-04-2021)

(U) A controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), applies to marijuana as well as other controlled substances, which are defined in section 102 of the Controlled Substances Act and in 21 CFR 1308.  For this guidance, the term “marijuana” includes any of the various parts or products of the plant Cannabis Sativa L., such as bhang, ganga, charras, dagga, hashish, and cannabis resin.  Hemp is not considered a controlled substance so long as its delta-9 tetrahydrocannabinol concentration is not more than 0.3 percent on a dry weight basis.

 

As mentioned earlier, he will need to apply for I-601 WAIVER

 

 

 

[brevig 28]

On 9/10/2021 at 5:45 AM, cimking said:

attended classes for drug use as part of his sentence.

Have him bring proof of this to his interview (or with the waiver).  Plus any other rehabilitation he went through.

 

On 9/10/2021 at 5:45 AM, cimking said:

1. Will this be an issue for him at any stage of this process? 

Yes, he'll need the I-601 waiver.

 

On 9/10/2021 at 5:45 AM, cimking said:

2. Does he need to obtain documentation regarding his criminal history?

Yes, once the I-129f is approved and arrives to the Embassy they will send him instructions on where to go to get his criminal history that he'll need to bring to the interview.

 

On 9/10/2021 at 5:45 AM, cimking said:

3. Is the beneficiary's criminal history a concern? 

Very much.  He technically isn't qualified and will need the waiver.  Not sure how often those are granted on K1 visas, but it might be a long shot.  You'd be much safer bringing him as a spouse.

 

On 9/10/2021 at 5:45 AM, cimking said:

4. Will he be asked if he has a criminal history at the interview?

He'll have to bring the criminal history to the interview and I can't imagine them not asking him about it.

 

If you haven't already filed the I-129f yet I would SERIOUSLY consider getting married first and then doing the I-130 instead.  Either way, getting counsel from a lawyer would be a good idea.

 

Also, I would make sure you scrub both of your social media accounts clean.  Anything that might give the impression that he still uses drugs or anything that raises moral concerns could be an issue and I would delete those types of posts (anything that even hints at it.  Like I would make sure all language in posts is clean, not posting any songs with "parental advisory", etc.  He'll want to look like a saint.).

 

[HRQX 4,145]

18 minutes ago, brevig said:

Not sure how often those are granted on K1 visas, but it might be a long shot.

If I-601 is approved then that is for the AOS (from K-1) process and the CO would approve an INA 212(d)(3)(A) nonimmigrant waiver since K-1 is technically a nonimmigrant visa: https://fam.state.gov/fam/09FAM/09FAM050207.html

Quote

c.  Waiver Availability for Applicants Ineligible under INA 212(a):  A K visa is a nonimmigrant visa, and, therefore, K nonimmigrants are generally eligible for INA 212(d)(3)(A) waivers. However, processing an INA 212(d)(3)(A) waiver would not be appropriate unless an immigrant waiver is also available when the K visa holder applies to adjust status to lawful permanent resident.  To determine whether a waiver is available for a K applicant, you must, therefore, first examine whether the INA 212(a) ineligibility is waivable for immigrant spouses of U.S. citizens, under either INA 212(g), INA 212(h), INA 212(i), INA 212(a)(9)(B)(v), INA 212(d)(11) or INA 212(d)(12) or similar provisions.  (For a more complete list, see 9 FAM 302 and 9 FAM 305.)

d. No Waiver Possible:  If the K visa applicant is ineligible for a visa on an INA 212(a) ground for which no immigrant waiver is or would be possible after marriage to the petitioner, then the case should not be recommended for an INA 212(d)(3)(A) waiver and no waiver request should be submitted to USCIS. (See 22 CFR 40.301.)

 

https://www.uscis.gov/i-601-addresses "I am... Seeking an immigrant visa or a nonimmigrant K or V visa and I have been found inadmissible by a consular officer after my visa interview."

[SalishSea 17,464]

19 hours ago, brevig said:

Very much.  He technically isn't qualified and will need the waiver.  Not sure how often those are granted on K1 visas, but it might be a long shot.  You'd be much safer bringing him as a spouse.

 

Nope.  The criminal inadmissibility applies to both spouses and fiances, as well as to any other person seeking an immigrant visa to the United States.

[Nyla J 7]

On 9/10/2021 at 7:47 PM, brevig said:

Have him bring proof of this to his interview (or with the waiver).  Plus any other rehabilitation he went through.

 

Yes, he'll need the I-601 waiver.

 

Yes, once the I-129f is approved and arrives to the Embassy they will send him instructions on where to go to get his criminal history that he'll need to bring to the interview.

 

Very much.  He technically isn't qualified and will need the waiver.  Not sure how often those are granted on K1 visas, but it might be a long shot.  You'd be much safer bringing him as a spouse.

 

He'll have to bring the criminal history to the interview and I can't imagine them not asking him about it.

 

If you haven't already filed the I-129f yet I would SERIOUSLY consider getting married first and then doing the I-130 instead.  Either way, getting counsel from a lawyer would be a good idea.

 

Also, I would make sure you scrub both of your social media accounts clean.  Anything that might give the impression that he still uses drugs or anything that raises moral concerns could be an issue and I would delete those types of posts (anything that even hints at it.  Like I would make sure all language in posts is clean, not posting any songs with "parental advisory", etc.  He'll want to look like a saint.).

 

Thank you!  I actually had the whole packet ready to mail off and his criminal history began weighing heavy on my mind.  Once I researched the probability of him being denied I started to look into CR1.  So your comment has seemed to confirm my thoughts on that.   I probably need to change my profile to CR1 and start dabbling in those groups.  Hopefully, all the document gathering I did for the K1 will not have been in vain and I can use it for the CR1.  Well... we're excited to get married either way, lol!  Ugh, this process...is a real mess.

[Nyla J 7]

On 9/11/2021 at 3:26 PM, Jorgedig said:

Nope.  The criminal inadmissibility applies to both spouses and fiances, as well as to any other person seeking an immigrant visa to the United States.

So no one with a criminal history is ever approved for k1 or cr1?

[SalishSea 17,464]

43 minutes ago, cimking said:

So no one with a criminal history is ever approved for k1 or cr1?

That’s not what I said at all.   To the person saying it would be “easier” to get a spousal visa with a criminal history (vs a K-1), I said that the criminal inadmissibility code of the INA applies to both equally.

[Just Paul 4,594]

51 minutes ago, cimking said:

So no one with a criminal history is ever approved for k1 or cr1?

For a beneficiary it is the same k1 vs cr1.

56 minutes ago, cimking said:

Well... we're excited to get married either way, lol!  Ugh, this process...is a real mess.

The CO determines the eligibility of the waiver at the interview.  Pick the visa that suits you the best!

 

[Nyla J 7]

59 minutes ago, Jorgedig said:

That’s not what I said at all.   To the person saying it would be “easier” to get a spousal visa with a criminal history (vs a K-1), I said that the criminal inadmissibility code of the INA applies to both equally.

Gotcha.  Thanks

[Nyla J 7]

51 minutes ago, Paul & Mary said:

For a beneficiary it is the same k1 vs cr1.

The CO determines the eligibility of the waiver at the interview.  Pick the visa that suits you the best!

 

Is it advisable to have the waiver prepared and ready for submission at the interview...so as to save time?

1 hour ago, Jorgedig said:

That’s not what I said at all.   To the person saying it would be “easier” to get a spousal visa with a criminal history (vs a K-1), I said that the criminal inadmissibility code of the INA applies to both equally.

Is it advisable to have the waiver prepared and ready for submission at the interview...so as to save time?

[HRQX 4,145]

35 minutes ago, cimking said:

Is it advisable to have the waiver prepared and ready for submission at the interview...so as to save time?

The Consular Officer has no role in the adjudication of the Form I-601; it must be submitted to USCIS at the appropriate address after the visa interview: https://fam.state.gov/fam/09FAM/09FAM030504.html

If you determine that the ineligibility grounds associated has a waiver available under the law, you should instruct the applicant that he or she may be eligible to file an I-601 waiver. If the applicant is interested, refer the individual to the USCIS webpage with instructions on completing the Form I-601 (and, if necessary, Form I-212). You have no role in the immigrant visa waiver application process since the applicant or his or her representative files the request directly with USCIS.

Edited September 13, 2021 by HRQX

[Boiler 44,855]

Well it is under 30

 

Potentially a medical as well as criminal issue

 

Do you have a lawyer?