Adjustment Of Status
Jul 12th 2008, 4:28 am
#31
Joined: Apr 2002
Posts: 35,082
Re: Adjustment Of Status
Why would i be asked to complete a "waiver of inadmissibility" at the AOS as i'm already here!??! If at the interview they thought i was inelegibility they would have denied my visa and i would have known where i stood. Not at one point did they say you may have trouble down the road ie: AOS,
Ian just wondering where you are getting this information from?
Kind regards
Ian just wondering where you are getting this information from?
Kind regards
I have never read of someone having to re-vet themselves after a visa interview. The Consular Officer reviewed your charges & your details, determined that you could be given a visa inside the law, and the Border Agent agreed by admitting you.
Don't let this worry hang over your head for months waiting on your AOS because of something clever Ian wrote.
Jul 12th 2008, 5:29 am
#32
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
Yeah i have employment authorized stamped on my I94 card, but we went to the local INS to see what the best option was. Heres what the lady said " Ok it says work authorized but that dosent mean you can work, i suggest you get married now and apply for AOS, because if you file EAD it could take 90 days, just as long as it takes to AOS, plus it costs $340 for EAD therefore you might as well pay the $1030 for AOS" but i read somewhere if i get my social security number 10 days after arrival and get the employer to fill out I9 you can work but this is not what the lady said. She said teh best option was just to get married ASAP, little confused anyhow.
My fiancee is a little disappointed the the 'spark' (for legally getting married on sept 21st) will be taken away. But hey what can you do I need to work as ive spent many months inbetween jobs because of travelling to and from the USA.
Ok my offenses which i toally regret are:
Drunk and disorderly 2000 - Reprimand
Theft from motor vehicle
Fraudulant use of a motor vehicle - 2002 (both from same offense both cautions) thought this wasnt on my record as it was dropped because i was driving my friends car at the time which had a tax disc which he borrowed and he got charged with the same offense, but it appeared on my ACPO record.
and finally Drink driving conviction - 2005 15 months 100 pounds fine
Ok i know it looks bad and stuff that i regret now but cant take it back, but as i said i arrived on a k1 visa and declared all these offences at the interview as they were on my police record, i suppose they looked at it as 1 conviction and a caution (suppose cautions dont count unless its drug related)
My fiancee is a little disappointed the the 'spark' (for legally getting married on sept 21st) will be taken away. But hey what can you do I need to work as ive spent many months inbetween jobs because of travelling to and from the USA.
Ok my offenses which i toally regret are:
Drunk and disorderly 2000 - Reprimand
Theft from motor vehicle
Fraudulant use of a motor vehicle - 2002 (both from same offense both cautions) thought this wasnt on my record as it was dropped because i was driving my friends car at the time which had a tax disc which he borrowed and he got charged with the same offense, but it appeared on my ACPO record.
and finally Drink driving conviction - 2005 15 months 100 pounds fine
Ok i know it looks bad and stuff that i regret now but cant take it back, but as i said i arrived on a k1 visa and declared all these offences at the interview as they were on my police record, i suppose they looked at it as 1 conviction and a caution (suppose cautions dont count unless its drug related)
First, you note that you obtained "advice" from a notoriously unreliable source. I am amused at how often people TRUST what they are told by government officials. The Supreme Court has held that public fisc is not responsible for mistaken advice from government functionaries -- its YOUR problem.
Second -- on the criminal record, I'm not in a position to make a definitive judgment because I have not seen your paperwork or the statutory definition of your offense. While it is true that the CIS is not bound by the consular determination, the fact that you were vetted by the consul is a good comfort factor. Also, when the consular vetting is combined with your description, I don't think that there was a "crime involving moral turpitude" involved. And if there was, you might have fallen into the "petty offense" exception.
This may be one of those cases where you have an attorney do the adjustment for you as an "insurance policy" and for your own comfort.
Jul 12th 2008, 5:58 am
#33
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
I am really surprised you did not need a Waiver of Ineligibility to obtain your K-1. All of the above cautions and convictions are serious enough to make it onto your record and raise red flags for the Consular Officer --- I can't imagine he/she would have just rubber stamped you w/o a Waiver.
Who said it was a "rubber stamp?" As I mentioned in a prior post here, I can easily envision that the ConOff CAREFULLY vetted the record and determined that there was no ground of inadmissiblity under section 212(a)(2).
That said, the OP might want to consider filing an I-601 concurrent with the AOS inasmuch as its no fee for a CONCURRENT filing. I've done this in cases like this with a notation on the I-601 that no waiver is needed but "if needed" here it is. This is a judgment call because sometimes it is better not to call the matter to DHS's attention.
The criminal grounds of inadmisiblity or removability are among one of the more complicated areas of the Immigration & Nationality Act. Take a look at the June 25, 2008 decision of the BIA at http://www.usdoj.gov/eoir/vll/intdec/vol24/3613.pdf
BTW, the three-member panel on this case is pretty conservative.
Jul 12th 2008, 6:15 am
#34
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
It is INHERENT in the system that Consular Officer determinations are NOT binding on the CIS adjudicators. It can and does happen. I get work when things like that happen.
[BTW, I received a BIA decision yesterday on an appeal from an order of removal. I mentioned it to my other half who, in turn mentioned the possibility of a largish fee for a Petition For Review to the Court of Appeals. I replied -- "I won. The proceedings were terminated." We then shared a good laugh. The victory was still sweet and client is ecstatic that she gets to keep her green card of 34 years].
Jul 12th 2008, 6:19 am
#35
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
Why would i be asked to complete a "waiver of inadmissibility" at the AOS as i'm already here!??! If at the interview they thought i was inelegibility they would have denied my visa and i would have known where i stood. Not at one point did they say you may have trouble down the road ie: AOS,
Ian just wondering where you are getting this information from?
Kind regards
Ian just wondering where you are getting this information from?
Kind regards
Good question. Before 1986, the legal interpretation of the K-1 admission was that the adjustment was not under Section 245(a). In 1986, Congress amended the law to add in a specific prohibition against use of Section 245(a). The former INS interpreted this prohibition as a direction to use section 245. [There is ongoing litigation in which I am involved as to whether or not this is a "reasonable" interpretation. But I digress].
It is well established that an applicant under section 245 is considered as if they are at the border applying for admission to the United States.
Jul 12th 2008, 8:50 am
#36
Forum Regular
Joined: Jul 2008
Location: London
Posts: 169
Re: Adjustment Of Status
I disagree.
If those cautions/cocnvictions are not CIMT, which it *appears* they are not, he would not be ineligible and would not require a waiver.
They checked the medical grounds of concern, and he came out fine.
Just because you have something on your record does not mean you are ineligible - it entirely depends upon what it is.
If those cautions/cocnvictions are not CIMT, which it *appears* they are not, he would not be ineligible and would not require a waiver.
They checked the medical grounds of concern, and he came out fine.
Just because you have something on your record does not mean you are ineligible - it entirely depends upon what it is.
Although our OP wasn't convicted of theft of a motor vehicle he obviously admitted some wrong doing given that he was cautioned (by definition a caution is a lesser form of punishment given to offenders who admit wrong doing). The question, as you point out is whether the crime involves moral turpitude, and I tend to think this one could certainly be interrupted as such.
Luckily for the OP the ConOff didn't think so but that certainly doesn't guarantee that it will be smooth sailing from here.
My point was that surely there was more to the story than was being explained --- b/c I couldn't see a ConOfficer not raising some questions about 3 arrests in 5 years.
Jul 12th 2008, 9:43 am
#37
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Thread Starter
Joined: Jul 2008
Posts: 34
Re: Adjustment Of Status
Ok first of all it was 3 arrests in 8 years, and it was not a caution for theft of a motor vehicle it was a caution for theft FROM a motor vehicle (tax disc) i was arrested for it although as i explained earlier i was driving my friends car which had the 'borrowed' task disc in, the guy who lent it out freaked out and accused the car owner to have stolen it. Anyhow the owner of the car had to go to court and I got a caution for knowingly driving a vehicle with that in. hope that explains everything.
Jul 12th 2008, 9:53 am
#38
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Thread Starter
Joined: Jul 2008
Posts: 34
Re: Adjustment Of Status
Plus when the consular officer was reviewing my record at the interview, he did point out that the 'These are just cautions' he was more concerned about the DUI.
Jul 12th 2008, 10:02 am
#39
Forum Regular
Joined: Jul 2008
Location: London
Posts: 169
Re: Adjustment Of Status
Ok my offenses which i toally regret are:
Drunk and disorderly 2000 - Reprimand
Theft from motor vehicle
Fraudulant use of a motor vehicle - 2002 (both from same offense both cautions) thought this wasnt on my record as it was dropped because i was driving my friends car at the time which had a tax disc which he borrowed and he got charged with the same offense, but it appeared on my ACPO record.
and finally Drink driving conviction - 2005 15 months 100 pounds fine
Drunk and disorderly 2000 - Reprimand
Theft from motor vehicle
Fraudulant use of a motor vehicle - 2002 (both from same offense both cautions) thought this wasnt on my record as it was dropped because i was driving my friends car at the time which had a tax disc which he borrowed and he got charged with the same offense, but it appeared on my ACPO record.
and finally Drink driving conviction - 2005 15 months 100 pounds fine
Ok first of all it was 3 arrests in 8 years, and it was not a caution for theft of a motor vehicle it was a caution for theft FROM a motor vehicle (tax disc) i was arrested for it although as i explained earlier i was driving my friends car which had the 'borrowed' task disc in, the guy who lent it out freaked out and accused the car owner to have stolen it. Anyhow the owner of the car had to go to court and I got a caution for knowingly driving a vehicle with that in. hope that explains everything.
Jul 12th 2008, 10:10 am
#40
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
I did jump to conclusions on the theft of motor vehicle --- apologies. I still standby my original statement that whether or not a crime involves moral turpitude is left to the discretion of the ConOff. Fortunately, yours saw things your way but that does not mean, as pointed out by others previously, that you won't have trouble along the way.
Beg to disagree -- it is not a "discretionary" determination -- it is a legal one. In fact, the decision on a visa application is not "discretionary" at all as that term is used in a legal sense. You have satisfied the ConOff that you are eligible for the visa or you are not. I know that I am being a tad pedantic here -- but in other contexts, the distinction can be important.
On the CIMT thing -- a curious thing is that although automobile theft is a CIMT, "joyriding" is not. The difference is between permanent "conversion" and a temporary "borrowing," shall we say. This distinction is long standing -- although the Board of Immigration Appeals has ruled that joyriding is "theft-related" for "aggravated felony" purposes.
Although gambling is considered immoral by many, it is NOT a CIMT to place illegal bets on the horse races! Counterfeiting is a CIMT but placing "slugs" in a NYC parking meter is not.
Again, this is not "discretionary" -- but the determinations are not as clear cut as some people might think.
Jul 12th 2008, 10:38 am
#41
Forum Regular
Joined: Jul 2008
Location: London
Posts: 169
Re: Adjustment Of Status
Hi:
Beg to disagree -- it is not a "discretionary" determination -- it is a legal one. In fact, the decision on a visa application is not "discretionary" at all as that term is used in a legal sense. You have satisfied the ConOff that you are eligible for the visa or you are not. I know that I am being a tad pedantic here -- but in other contexts, the distinction can be important.
Beg to disagree -- it is not a "discretionary" determination -- it is a legal one. In fact, the decision on a visa application is not "discretionary" at all as that term is used in a legal sense. You have satisfied the ConOff that you are eligible for the visa or you are not. I know that I am being a tad pedantic here -- but in other contexts, the distinction can be important.
Being pedantic myself, I am wondering in terms of CIMT . . . does what it takes to satisfy a Consular Officer vary (in reality, not on the books)?
Jul 12th 2008, 1:45 pm
#42
Forum Regular
Thread Starter
Joined: Jul 2008
Posts: 34
Re: Adjustment Of Status
Ok i can take that i may have trouble along the way with AOS etc: but thus far I have been ok. Of course tho I have searched a lot of discussions on this forum and i havent come across an Individual who has had their visa approved (based on previous cautions/convictions) and then their AOS status denied all I can do is wait a see what happens and if i need an immigration attorney i will fork out one when needed.
So 'sort' of in conclusion we have decided to get the legal marriage done and dusted next weekend, ceremony 21st sept, apply for AOS straight away (by next week, whilst im looking for temporary employment, should be able to get my SSN by this week) fingers crossed AOS is approved as it certainly isn't a fraudulant marriage and my fiance meets the poverty guidlines
So 'sort' of in conclusion we have decided to get the legal marriage done and dusted next weekend, ceremony 21st sept, apply for AOS straight away (by next week, whilst im looking for temporary employment, should be able to get my SSN by this week) fingers crossed AOS is approved as it certainly isn't a fraudulant marriage and my fiance meets the poverty guidlines
Jul 12th 2008, 2:30 pm
#43
Account Closed
Joined: Sep 2002
Posts: 16,266
Re: Adjustment Of Status
Being a legal determination, the ConOffs like to have a legal opinion from the Advisory Opinion Office at Foggy Bottom. [They generally have pretty good attorneys there. The immigration bar is in mourning over one the recent incumbents of that position -- http://www.ilw.com/immigdaily/digest/2008,0701.shtm I actually saw Steve across the room in apparent good health three hours before he collapsed. I am slightly younger than he is.
The issues can get complicated in applying US legal thoughts to a foreign system. A prime example is the John Lenon case. I recall a case I had many years ago from Korea. Korea does not have a "tort" system like those of the UK or US. Rather they use what would be called "civil compromise" to avoid a criminal prosecution. Client had been a commercial truck driver when he was involved in an accident. It turned out that the employer did not have a policy of insurance. When the cops found out the driver was uninsured when he was interviewed at the SCENE OF THE ACCIDENT, he was charged with and later convicted of "hit and run." Well, driving without insurance is not a CIMT, but "hit and run" is. I argued with the ConOff that this was not a CIMT, ConOff was sympathetic but said they had AO's that it was. He suggest strongly that I talk to the INS OIC in the Embassy and I would probably be better getting a waiver. I spoke to the OIC -- he was VERY sympathetic, would not guarantee anything but said that if I was a good lawyer, I could come up with "something" that "I can hang my hat on." We put in the lamest possible hardship letter and the I-601 was approved in 2 weeks. Go figure.
Last edited by meauxna; Jul 13th 2008 at 4:31 am. Reason: fixed link
Jul 12th 2008, 4:23 pm
#44
Lost in BE Cyberspace
Joined: Jan 2007
Location: NW Chicago suburbs
Posts: 11,253
Re: Adjustment Of Status
Hi:
Being a legal determination, the ConOffs like to have a legal opinion from the Advisory Opinion Office at Foggy Bottom. [They generally have pretty good attorneys there. The immigration bar is in mourning over one the recent incumbents of that position -- http://www.ilw.com/immigdaily/digest/2008,0701.shtm] I actually saw Steve across the room in apparent good health three hours before he collapsed. I am slightly younger than he is.
The issues can get complicated in applying US legal thoughts to a foreign system. A prime example is the John Lenon case. I recall a case I had many years ago from Korea. Korea does not have a "tort" system like those of the UK or US. Rather they use what would be called "civil compromise" to avoid a criminal prosecution. Client had been a commercial truck driver when he was involved in an accident. It turned out that the employer did not have a policy of insurance. When the cops found out the driver was uninsured when he was interviewed at the SCENE OF THE ACCIDENT, he was charged with and later convicted of "hit and run." Well, driving without insurance is not a CIMT, but "hit and run" is. I argued with the ConOff that this was not a CIMT, ConOff was sympathetic but said they had AO's that it was. He suggest strongly that I talk to the INS OIC in the Embassy and I would probably be better getting a waiver. I spoke to the OIC -- he was VERY sympathetic, would not guarantee anything but said that if I was a good lawyer, I could come up with "something" that "I can hang my hat on." We put in the lamest possible hardship letter and the I-601 was approved in 2 weeks. Go figure.
Being a legal determination, the ConOffs like to have a legal opinion from the Advisory Opinion Office at Foggy Bottom. [They generally have pretty good attorneys there. The immigration bar is in mourning over one the recent incumbents of that position -- http://www.ilw.com/immigdaily/digest/2008,0701.shtm] I actually saw Steve across the room in apparent good health three hours before he collapsed. I am slightly younger than he is.
The issues can get complicated in applying US legal thoughts to a foreign system. A prime example is the John Lenon case. I recall a case I had many years ago from Korea. Korea does not have a "tort" system like those of the UK or US. Rather they use what would be called "civil compromise" to avoid a criminal prosecution. Client had been a commercial truck driver when he was involved in an accident. It turned out that the employer did not have a policy of insurance. When the cops found out the driver was uninsured when he was interviewed at the SCENE OF THE ACCIDENT, he was charged with and later convicted of "hit and run." Well, driving without insurance is not a CIMT, but "hit and run" is. I argued with the ConOff that this was not a CIMT, ConOff was sympathetic but said they had AO's that it was. He suggest strongly that I talk to the INS OIC in the Embassy and I would probably be better getting a waiver. I spoke to the OIC -- he was VERY sympathetic, would not guarantee anything but said that if I was a good lawyer, I could come up with "something" that "I can hang my hat on." We put in the lamest possible hardship letter and the I-601 was approved in 2 weeks. Go figure.
