Alyssa

i'm really embarassed to be asking, but i kinda need to know some answers. hopefully someone here will be able to advise me.

okay, my fiance is in the US, and I want to apply for K-1. but i had a little trouble with the law five years ago.

basically what happened, i've been treated for psychological problems, and a drug that my physician prescribed caused me psychosis. i contacted my doctor and he advised me to head to the ER. the ER refused to treat me, and sent me home. i was denied an evaluation by a psychiatric doctor. i couldn't get an appointment for a few days, and my physician told me in the mean time to stop the medication.

since i stopped suddenly, things weren't going quite normal. i got into an argument with someone and the police were called. i had to be physically restrained. i was subsequently charged with two counts of assault, one simple assault, the other charge was a little more serious.

now here's the part that's tricky. i went to court, and plead not-guilty to both charges, a judge found me guilty of the more serious assault charge, but dropped the lesser charge. i was given a minimum sentence of 6 months probation in light of the situation which caused me to act that way. i apologized to the officer who was present post-sentence, and since shortly after the incident, my medication has been in balance and i've been fine. no further run ins with the law or doctors.

i applied for my police certificate from the RCMP because I need that for the K-1, and it came back with the LESSER assault charge listed. i was told i need to get court papers too. i applied for that from the courthouse, and they came back with the MORE SERIOUS assault charge.

i've done my research, and what i've been convicted of in court is felonious assault, it's definitely not a misdemeanor from the way that it was written on my court records. i don't really remember the details of the incident, i don't even remember assaulting anyone, but the court found me guilty, so i guess i am.

with two conflicting records, what do i do now? as i understand it, i have to provide both, so i can't downplay the incident. but does that mean i'm totally screwed getting a k-1? this happened five years ago.

thanks in advance.

scrubbedexpat099

Might be lawyer time for this one, it would be how its adjudged in US law, a Felony would not be just probation.

You say you are in the US, how come you could enter with that on your record?

Alyssa

i said my fiance is in the US, i'm in Canada. if someone in the US were to look up my record, they'd see the printout i got from the RCMP with the lesser charge. it's the court papers that show the more serious offence (to the best of my knowledge that's what i was supposed to be convicted of).

the case was handled entirely summarily in Canada. i think you guys would call it a misdemeanour. but i've checked with US law, if i were charged with something different, i could have been charged with resisting arrest or disturbing the peace (to get the same conviction), but because of the wording on my court documents, it translates to a felony assault, even though i doubt i'd have been charged that if the situation happened in the US.

i do believe i was resisting arrest and too out there to realize i was being arrested (as a result of the medication then withdrawl from), but i don't believe i actually assaulted anyone. maybe that's just how they charge people who resisted arrest in Canada.

the other concern i've been warned is because of the circumstances surrounding the crime, there might be a question of my mental health. is a letter from my doctor all that's required? i'm fine on my medication (now that i've been given something that works and doesn't cause me to get worse), but one might argue that in those circumstances i'm at risk for reoffending.

i'm just freaking out, i really want to join my fiance in the US with the K-1.

Tracym

I think there could very well be concern re. your mental health In your place, I would certainly get a letter from your your doctor. You could very possibly be sent to a psychiatrist for an evaluation. From a medical standpoint - I believe it is likely that the concern would be if harmful behavior would be likely to recur.

To see the guildelines for what they're looking at with mental health, look here, beginning on page 20:

http://www.cdc.gov/ncidod/dq/pdf/ti-alien.pdf

You might want to consult an attorney experienced in these matters.

Folinskyinla

Hi:

As you describe it, you do not seem to have a conviction of a crime that would prevent visa issuance. However, I have not seen your records or a copy of the statute under which you were convicted.

A legal consultation is in order. It looks like paid research on the part of the lawyer may not be a bad idea.

Good luck.

Scouse Express

Are you a Canadian Citizen??????

Jim.

Alyssa

Yes.

Alyssa

It's pretty embarassing for me to talk about, I really didn't know what kind of reaction I'd get here in admitting I have a record that's only 5 years old. From the replies, I think you're all right, I need a lawyer.

It would be more straight forward in my eyes if the documents would match, it's because they don't match that I'm rather concerned. I don't know how the court convicted me of one offence and the charge that was tossed is what was put on my RCMP record.

crg

What type of assault was the serious assault? Was there a weapon involved? What kind of weapon?

It's unclear if you will need a criminal waiver, but they're going to want to verify that you're admissible under mental health grounds since you have a history like this.

Alyssa

i'm kind of embarassed to admit this...

what happened was, i resisted arrest and "assaulted the arresting officer" as a result. the conviction reads, "did commit assault against (officer) during the execution of his duties".

i've had a little help with research on this, and what i learnt was that in the US, that would translate to resisting arrest in most cases (because that's what happens when people resist arrest, there is usually a struggle of some kind). from what i read, the way this crime reads, it's a felony and people serve prison time. but this happened because i resisted arrest, i was told at the scene i'd be charged with resisting arrest, and i didn't know about this assault charge until the day i showed up for my first court appearance. so that's why i'm worried, the way that reads, it could be interpreted many ways, and i'm not sure explaining the true circumstances is going to help much because of the mental health concerns.

oh, there was no weapons involved, and no underlying criminal circumstances, i was being placed under immediate arrest for causing a disturbance, but the person i argued with had me charged with assault. that assault charge was tossed out because in his own statement that was entered as evidence, he admitted to provoking me, name-calling, etc. the assault charge from resisting arrest stuck though, so i think it's interpretation, and the police charge you with what they want as long as the crime fits the description of the offence. they could have given me resisting arrest instead, but they chose not to.

i'm getting increasingly more concerned about the mental health aspect. my understanding is that my doctor won't be of much help because the USCIS will want to evaluate the competency of that doctor to make a decision with regards to my mental health. i'm pressuming i'll have to see one of their doctors, but i don't know how this works. can anyone explain?

Tracym

I do not think that you cannot hide the mental health issues from them.

You can have your doctor write a letter - it cannot hurt.

As part of the medical for the visa, the panel physician will examine you, including a basic mental health exam. You will have to disclose your mental health issues.

Basically, I think it could be considered a mental disorder, with associated harmful behaviour.

However, since this occurred under the influence of the drug - presuming you are telling all the facts accurately, I would think it could very possibly be determined that what happened was not due to your mental disorder, but rather to the influnce of the medication, and thus not likely to recur.

If he/she is not sure that the behaviour was due to the medication, the panel physician could tell you to get a psychiatric exam. They might assist you in finding a psychiatrist to do this.

Depending upon what your mental disorder is might influence if they will send you for a psychiatric evaluation. Is it still present? In remission? Controlled by medication?

Basically, as I understand it there are two things they are concerned with re. mental disorders:

1. Is associated harmful behaviour (to self or others) likely to recur?
2. Will the disorder be so severe as to make you likely to be a public charge?

I'm trained in psychology, but not licensed or practicing. If you want to ask me anyting in a PM you don't want to post - feel free, I'll help if I am able.

Folinskyinla

See a lawyer. Take the conviction documents.

Tracym

I agree (of course, he's the expert).

A lawyer should be able to guide you with the mental health issue as well, if there is one.

Rete

Before you retain one be sure that they are familiar with your issues and have dealt with them in the past, hopefully, successfully.

You don't want just any attorney with a JD after their name but one who specializes in your problem area.

Some attorneys will only do straight forward marriage visas and/or H-1B's and not be acquainted with the ins, outs, regulations, laws, etc. regarding arrest records and mental health concerns. Others might practice litigation only and not be up-to-date with marriage based visa's and the many changes that have taken place recently.

Good luck in your endeavor to obtain a K-1 visa.

Tracym

Absolutely!

I'd think someone who specialized in waivers would be familiar with both issues, wouldn't you?

Not saying she'll need a waiver, just that an attorney who did them should be familiar with her issues.