CIMT/ Arrest and the K1

[TidusSquall 2]

Hello all,

I'd like some advice please. Michael here (the beneficiary). I was arrested for shoplifting in October 2010. I attended my court date and I was offered a pre-trial diversion program which involved me making a charitable contribution which I completed. I have not visited my fiancee in the US on the ESTA as a result, and he has come to visit me in Toronto. I have gone several years very confused over what the records would show. Two months ago I went to get a police record check, and it came up clean. It is my understanding however that on the forms that I will be receiving in the mail after the NOA2 they are going to ask if I was ever arrested. I'd rather not delay our process anymore, are there any documents that I should be gathering from the police station or the court?

Thank you in advance!

Michael

This is the form I was looking at:

http://www.state.gov/documents/organization/81807.pdf

[Harpa Timsah 13,258]

Canadians don't visit on ESTA. You will need the court documents and you will likely be denied. Then you can seek a waiver.

[TidusSquall 2]

To further clarify, I'm not a Canadian citizen, I'm a British citizen. We believed that this process was more forgiving of past indiscretions. I have no convictions, why is it that you believe it will be denied? From what I've read in other posts it didn't seem so cut and dry?

-Michael

[Harpa Timsah 13,258]

I have seen a single shoplifting arrest/conviction get a denial for immigration purposes. You can look for the petty exemption cause, but shoplifting is not looked on lightly.

A diversion program seems like an admission of guilt to me.

[TidusSquall 2]

What can I do in this case? Do we have to wait to be denied to apply for the visa waiver? Are we going to be denied based on these post-NOA2 forms then? Pre-trial diversions are considered as an admission of guilt, but it was my one and only offense.

[TidusSquall 2]

This being the exemption clause, the only part I see that I may not fit into is that theft under 5000 can be up to 2 years in prison...

9 FAM 40.21(a) N7.1 Provisions of INA 212(a)(2)(A)(ii)
(CT:VISA-1318; 09-24-2009)
As amended, a conviction or admission of the commission of a crime of moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i), if the following conditions have been met:
(1) The applicant has been convicted of or has admitted to the commission of only one crime;
(2) The maximum penalty possible for the crime of which the alien was convicted or for which the alien legally admitted to did not exceed imprisonment for one year and, if the alien was convicted and the alien was not sentenced to a term of imprisonment in excess of six months; or
(3) The crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement if applicable) more than 5 years before the date of the visa application. (See 9 FAM 40.21(a) N8, below.)

Edited September 5, 2014 by Mike&Luis

[Harpa Timsah 13,258]

You should consult with a lawyer who specializes in waivers, and then pay for their services in preparing the waiver.

If you don't qualify for the petty exemption clause, as it appears you do not, then the petition will be approved, and the visa will be denied. Then you will submit a waiver.

But this is not DIY territory. Find a good lawyer. Good luck.

[Hypnos 6,576]

Shoplifting is usually considered a CIMT. If you do not qualify for the petty offence exception then you would need to wait until you were formerly denied by the embassy, and then would be able to file an I-601 waiver.

The advice about consulting an experienced immigration attorney is bang-on. The US is not as forgiving about criminal activity as you had believed.

Edited September 5, 2014 by Hypnos