k-1 interview in japan, shoplifting and the I-601 waiver

[muamenulano 0]

Hello all, 

 

I tried using the search and advanced search function but couldn't find the exact answer to my question. I apologize if it has been answered before. 

 

I, american citizen petitioner, have applied for a k-1 visa with my fiancee beneficiary, south korean citizen living in japan, and she has her interview coming up in a month or so. 

 

About 7 years ago, she made the dumb decision to try shoplifting eyedrops from a super market. The eye drops had a value of about $5. She was caught before walking out the door, held by the police for 3 days (common in Japan) and then filed a guilty plea and paid a fine of about $1000. She is 30 now and this is the only instance of criminal conduct on her record. Japan does not distinguish statutorily between theft and petty theft. She pled guilty under the following code:
 

Chapter XXXVI Crimes of Theft and Robbery

(Theft)

Article 235A person who steals the property of another person commits the crime of theft and is punished by imprisonment for not more than 10 years or a fine of not more than 500,000 yen (~$4500 in 2017)

 

I wanted to check if my understanding of how this process works is correct.

 

First, shoplifting will generally be considered a crime of moral turpitude and cause her to be inadmissible to the US under INA 212(a)(2)(A)(i)(I). Because she was not under 18 and because the Japanese code has a maximum penalty of 10 years imprisonment, she would not qualify for either of the INA 212(h) exceptions. Is my understanding correct that she will likely be denied due to the shoplifting charge or is there enough discretion at this point where there is a chance they will approve the k-1 visa despite the theft charge?

 

Second, assuming that she is found inadmissible, we then file form I-601. As she does not fit under either INA 212(h) exception, the I-601 form will be premised on extreme hardship that I would suffer should she not be allowed entry into the US. Is my understanding of use of form I-601 correct?

 

Finally, I wanted to double check under which country's law the maximum punishment for a crime of moral turpitude will be assessed. My understanding is that the law of the area where the crime took place is used but is that the case?

 

Thank you for your time and sorry for writing so much.

[Austin96 15]

On 5/23/2024 at 6:18 PM, muamenulano said:

Hello all, 

 

I tried using the search and advanced search function but couldn't find the exact answer to my question. I apologize if it has been answered before. 

 

I, american citizen petitioner, have applied for a k-1 visa with my fiancee beneficiary, south korean citizen living in japan, and she has her interview coming up in a month or so. 

 

About 7 years ago, she made the dumb decision to try shoplifting eyedrops from a super market. The eye drops had a value of about $5. She was caught before walking out the door, held by the police for 3 days (common in Japan) and then filed a guilty plea and paid a fine of about $1000. She is 30 now and this is the only instance of criminal conduct on her record. Japan does not distinguish statutorily between theft and petty theft. She pled guilty under the following code:
 

Chapter XXXVI Crimes of Theft and Robbery

(Theft)

Article 235A person who steals the property of another person commits the crime of theft and is punished by imprisonment for not more than 10 years or a fine of not more than 500,000 yen (~$4500 in 2017)

 

I wanted to check if my understanding of how this process works is correct.

 

First, shoplifting will generally be considered a crime of moral turpitude and cause her to be inadmissible to the US under INA 212(a)(2)(A)(i)(I). Because she was not under 18 and because the Japanese code has a maximum penalty of 10 years imprisonment, she would not qualify for either of the INA 212(h) exceptions. Is my understanding correct that she will likely be denied due to the shoplifting charge or is there enough discretion at this point where there is a chance they will approve the k-1 visa despite the theft charge?

 

Second, assuming that she is found inadmissible, we then file form I-601. As she does not fit under either INA 212(h) exception, the I-601 form will be premised on extreme hardship that I would suffer should she not be allowed entry into the US. Is my understanding of use of form I-601 correct?

 

Finally, I wanted to double check under which country's law the maximum punishment for a crime of moral turpitude will be assessed. My understanding is that the law of the area where the crime took place is used but is that the case?

 

Thank you for your time and sorry for writing so much.

You are absolutely correct in your assumption. Theft is regarded a CIMIT. Additional, the law and the sentencing guidelines of the country where the offence was committed would apply, insofar as the I601 waiver application is concerned. Hence your fiancée would not be eligible for the petty offence exemption.  Your fiancée's circumstance are very similar to mine (based in the UK). I was the beneficiary of the K1 visa, attended the visa interview here at the Embassy in London. K1 visa was denied on the grounds my theft conviction was a CIMIT. Was advised to apply for I601- waiver, which has just been approved after waiting almost two and half years.

Just so you are aware, I filled out and submitted the I601 waiver application by myself and without a lawyer as I was quoted £5000 by a lawyer. Hope this helps.

 

 

[muamenulano 0]

25 minutes ago, Austin96 said:

You are absolutely correct in your assumption. Theft is regarded a CIMIT. Additional, the law and the sentencing guidelines of the country where the offence was committed would apply, insofar as the I601 waiver application is concerned. Hence your fiancée would not be eligible for the petty offence exemption.  Your fiancée's circumstance are very similar to mine (based in the UK). I was the beneficiary of the K1 visa, attended the visa interview here at the Embassy in London. K1 visa was denied on the grounds my theft conviction was a CIMIT. Was advised to apply for I601- waiver, which has just been approved after waiting almost two and half years.

Just so you are aware, I filled out and submitted the I601 waiver application by myself and without a lawyer as I was quoted £5000 by a lawyer. Hope this helps.

 

 

Thanks so much for the info. If you don't mind me asking (and if you're okay sharing but don't want to publicly, feel free to DM me) what did you put in your i-601 waiver in regard to the "extreme hardship" your partner would face if you were not allowed to immigrate?

[Austin96 15]

58 minutes ago, muamenulano said:

Thanks so much for the info. If you don't mind me asking (and if you're okay sharing but don't want to publicly, feel free to DM me) what did you put in your i-601 waiver in regard to the "extreme hardship" your partner would face if you were not allowed to immigrate?

No problem. I had established eligibility for consideration of the rehabilitation waiver under subsection 212(h)(1)(A) (15 years) , therefore saw no purpose in also addressing eligibility criteria (hardship) under  212(h)(1)(B). As your fiancée is at year 7 since the conviction, she is only eligible to apply under the latter. If you need further advise join the i601 waiver support group 2021 and beyond via Facebook. There are some good recommendation for lawyers that just specialize in I601 and are not that expensive.

[muamenulano 0]

20 hours ago, Austin96 said:

No problem. I had established eligibility for consideration of the rehabilitation waiver under subsection 212(h)(1)(A) (15 years) , therefore saw no purpose in also addressing eligibility criteria (hardship) under  212(h)(1)(B). As your fiancée is at year 7 since the conviction, she is only eligible to apply under the latter. If you need further advise join the i601 waiver support group 2021 and beyond via Facebook. There are some good recommendation for lawyers that just specialize in I601 and are not that expensive.

Ah I see. I am really hoping that the processing time is a little faster on this one but I'm going to try and keep level headed about everything. Thank you so much for the information. I just went and asked to join the FB group.

[SalishSea 17,829]

On 6/1/2024 at 10:44 AM, muamenulano said:

Ah I see. I am really hoping that the processing time is a little faster on this one but I'm going to try and keep level headed about everything. Thank you so much for the information. I just went and asked to join the FB group.

Needing a 601 waiver adds at least one year to the overall timeline, possibly more.

 

You would have a much higher chance of success if you were married (extreme hardship), since "fiancee" is not a legal/financial relationship.

Edited June 4 by SalishSea

[muamenulano 0]

Hey all, just wanted to post a quick update. She had her interview today and she was approved! I'm surprised the shoplifting didn't cause a bigger issue but i'm just counting us as lucky. Thanks for all of your help!

[Ra2023 11]

5 hours ago, muamenulano said:

Hey all, just wanted to post a quick update. She had her interview today and she was approved! I'm surprised the shoplifting didn't cause a bigger issue but i'm just counting us as lucky. Thanks for all of your help!

Congratulations 

you filed I 601 ?

[muamenulano 0]

1 hour ago, Ra2023 said:

Congratulations 

you filed I 601 ?

Nope. They approved her at the interview. 

[Ra2023 11]

19 minutes ago, muamenulano said:

Nope. They approved her at the interview. 

My visa was denied at interview CIMT IN US.26 years ago told me to file 601. Waiting for approval.

[muamenulano 0]

3 hours ago, Ra2023 said:

My visa was denied at interview CIMT IN US.26 years ago told me to file 601. Waiting for approval.

yeah, i'm honestly shocked at her not being denied. I dont know if this will be helpful but the only options i can think of are:

• it is discretionary and we got lucky
• she was never actually in jail for the shoplifting charge, just detained at the station for 3 days (though that's not how i understand the law to work)
• we have been dating for nearly a decade so there wouldn't really be any question about it being a bona fide relationship
• (i personally think this is shitty if true but the thought did occur) Japan being such a low marriage fraud country, they might be less strict in their approval process
• I'm a recently graduated law student. I don't think that would do it but maybe.
• my joint sponsor is fairly well off. maybe they look at that? (again, shitty if true)

I'm happy to answer any questions if it helps but that's about all i can think of.