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IR-1 visa / green card application with non-CIMT record

IR-1 visa / green card application with non-CIMT record

Old Aug 30th 2017, 11:53 am
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Default IR-1 visa / green card application with non-CIMT record

Hi All,

Hoping that someone here might be able to clarify my thinking. I've been through the sticky threads and backposts on this and other forums extensively, but may have confused myself more in the process!

I am a UK citizen married to a US citizen, presently living in the UK. We are planning to move to America next year and so I am applying for an IR-1 visa as we have been married for over 5 years.

Complication: Just over 5 years ago I was arrested for shoplifting (a shameful episode in my past which I have long since put behind me) and received a 1-year conditional discharge in magistrate's court. No further trouble with the police of any kind since then. So no conviction or criminal record in the eyes of the UK, but a different story in terms of USCIS.

I was rather surprised on receiving my Police Letter today that rather than saying "No Live Trace" it mentioned the offence and conditional discharge. Not necessarily a showstopper I hope, as obviously I was honest and admitted the offence on my DS-260. I have received a certified record from the court with the full details, and am currently awaiting my Subject Access Request also so that I have everything that the Consular Officer might need.

As I understand from basically consuming the entire internet trying to understand how much trouble I'm potentially in with USCIS, I should qualify for the "petty offence exception", which I understand to mean:

"A petty offense is defined as one in which (a) the maximum possible penalty for the crime did not exceed imprisonment for one year and (b) the alien was not sentenced to a term of imprisonment in excess of six months -- whether the sentence was ultimately executed or served or not. The petty offense exception is not available if more than one CIMT offense was committed or admitted."

That seems to sum up my situation perfectly, and according to this I have therefore not committed a CIMT.

I am, however, naturally apprehensive about the interview at the US embassy, which I will be scheduling as soon as I receive my health records and schedule a medical with the charmingly expensive Knightsbridge Doctors. Besides this one stain in my past I am of good character, have a record of community involvement and charitable commitment. As I mentioned above, I have been married to a US citizen for over 5 years.

I would greatly appreciate if those with knowledge could sense-check my thinking, confirm my understanding of the CIMT petty offence exception and give any thoughts as to how much difficulty I might expect at the interview.

Please let me know if I have left out any other pertinent information and I'll update this post accordingly.

Many thanks in advance.

Last edited by LandOfLincoln; Aug 30th 2017 at 11:58 am. Reason: Correcting typo
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Old Aug 30th 2017, 12:06 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by LandOfLincoln
..... I should qualify for the "petty offence exception", which I understand to mean:

"A petty offense is defined as one in which (a) the maximum possible penalty for the crime did not exceed imprisonment for one year and ..." ....
That depends on the value of goods you were charged with stealing. What was the value?
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Old Aug 30th 2017, 12:07 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by Pulaski
That depends on the value of goods you were charged with stealing. What was the value?
The value of goods was just under £250.
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Old Aug 30th 2017, 12:27 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by LandOfLincoln
The value of goods was just under £250.
Ugh! The maximum penalty for theft of goods exceeding £200 is seven years imprisonment, therefore the petty offense exception does not apply in your case.
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Old Aug 30th 2017, 2:06 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

I think a short consultation with an immigration attorney would be wise.
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Old Aug 30th 2017, 2:48 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by tom169
I think a short consultation with an immigration attorney would be wise.
I totally agree!

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Old Aug 30th 2017, 3:12 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Many thanks all for your considered feedback. Not what I wanted to hear obviously, but definitely what I needed to hear so I can plan. Hopefully this won't be too much of a bump in the road but definitely best to be prepared - I really don't want to have to disappear down the Waiver sinkhole if it can be avoided.

With that in mind, does anybody have a recommendation for a good immigration attorney with whom to schedule a consultation? I have heard good things about a certain Steven Heller, formerly of USCIS (Steven D Heller, Director - US Immigration Lawyer in the UK) but any other advice or recommendations would be much appreciated.
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Old Aug 30th 2017, 3:31 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by tom169
I think a short consultation with an immigration attorney would be wise.
Agree with this. A waiver will be required, but it's not a slam dunk that you'll be recommended for one.
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Old Aug 30th 2017, 6:27 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Many thanks all for your considered feedback. Not what I wanted to hear obviously, but definitely what I needed to hear so I can plan. Hopefully this won't be too much of a bump in the road but definitely best to be prepared - I really don't want to have to disappear down the Waiver sinkhole if it can be avoided.

With that in mind, does anybody have a recommendation for a good immigration attorney with whom to schedule a consultation? I have heard good things about a certain Steven Heller, formerly of USCIS (Steven D Heller, Director - US Immigration Lawyer in the UK) but any other advice or recommendations would be much appreciated.
A consultation does not always have to be in person - or even on the same continent.

Laurel Scott in Philadelphia has been mentioned here before, and is recognized in the immigration bar as the specialist in waivers according to the resident attorney on these boards. Might be worth considering.
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Old Oct 9th 2017, 2:21 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Hi All. Thought I should provide a quick update on my application for the benefit of any others who may face a similar situation in future. Happy ending in my case.

After doing some extensive research I determined that the £200 low-value classification only came into force in 2014, after my incident. I pulled the compulsory sentencing guidelines from the Sentencing Council - those which were in force in 2012 and those currently in place - and in both cases determined that the classification of my offence did NOT violate the CIMT petty offence exemption, as the maximum applicable penalty for my category of offence was a community order, the minimum a discharge (I received a conditional discharge).

I went for my appointment at the US embassy armed with a printout of the CIMT petty offence exception together with a highlighted and annotated copy of the Theft Act 1968 together with the sentencing guidelines of 2008 and 2014, as well as my Police Letter, Subject Access Record, Court Record and printout of email confirming that I had paid court costs.

At the interview, the consular officer took one brief glance at my police letter and SAR, asked if I had ever been in any other trouble with the police (to which I truthfully said "no"), and then approved my application. Didn't ask for court records or any other supporting information. Hooray.

Obviously on another day with another consular officer the outcome may have been different, but I went to the interview armed with everything required to argue a persuasive case that I qualified for the CIMT petty offence exception and in the end it was not required. I'm glad that I had all of this documentation in reserve for my own peace of mind, but in the end it went off without a hitch at the embassy. I spent no more than 3 minutes at the initial document handover stage, and 5 minutes at the "interview" window (and almost no time waiting for either - future applicants, definitely seek an afternoon appointment if you can!).

Thanks to all for your advice, and I hope that my experience will in a small way add to the immense body of knowledge on this site.
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Old Oct 9th 2017, 2:27 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by LandOfLincoln
Hi All. Thought I should provide a quick update on my application for the benefit of any others who may face a similar situation in future. Happy ending in my case.

Thanks to all for your advice, and I hope that my experience will in a small way add to the immense body of knowledge on this site.

I'm sure it will be very helpful to someone in the future. Thank you for stopping back and giving us your update. Congratulations on your success.
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Old Oct 9th 2017, 2:38 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Originally Posted by LandOfLincoln
Hi All. Thought I should provide a quick update on my application for the benefit of any others who may face a similar situation in future. Happy ending in my case.

After doing some extensive research I determined that the £200 low-value classification only came into force in 2014, after my incident. I pulled the compulsory sentencing guidelines from the Sentencing Council - those which were in force in 2012 and those currently in place - and in both cases determined that the classification of my offence did NOT violate the CIMT petty offence exemption, as the maximum applicable penalty for my category of offence was a community order, the minimum a discharge (I received a conditional discharge). ......

Thanks to all for your advice, and I hope that my experience will in a small way add to the immense body of knowledge on this site.
Congratulations and thanks for checking back in - it is always good to hear of the final outcomes of threads.

I am also glad to hear that I was wrong about the petty offence sentencing rules as applied to your situation.
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Old Oct 9th 2017, 3:07 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Congratulations! This thread will serve as great reference for site members in the future.
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Old Oct 9th 2017, 4:38 pm
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Default Re: IR-1 visa / green card application with non-CIMT record

Congratulations!

Goes to show being up-front and truthful on your application is the way to go.
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