markno1

I am a 33yo male living in London with my American gf of 2 years.

We are wanting to move to the US and get married, so i can get a visa and work.

The one problem i have is that i am in court on July 2nd 2008 after being charged with Criminal Damage which i am pleading guilty to (pushed over a water cooler), and using racist language section 5 (a fine is the maximum sentence) which i am not guilty of, and have 3 witness's that are unknown to me and work with the person who made this claim, hence i will be pleading not guilty and hope to get off.

What i am wondering is will these offences stop me from getting the fiance and the marriage visa.

My gf is not white, which shows i am not colour prejudice is any way.

Any advice is greatly appreciated as i dont want one silly moment to define the rest of my life.

Noorah101

I don't know much about how the Criminal Damage court things will affect you.

However, I am wondering which immigration route you are actually choosing? You mention "getting the fiance and the marriage visa", but those are 2 different visas.

You also mention your US girlfriend has been in the UK for 2 years. What's her status there? If she qualifies, perhaps you can marry in the UK and do Direct Consular Filing (DCF), which is faster than doing it via the USA.

Best Wishes,
Rene

markno1

As we arent married we are thinking of doing the fiance visa for now then the marriage in due course.

The gf is teaching English as a foreign language and her visa runs out shortly.

But no matter where we apply for the visa the criminal damage will affect me the same will it not?

Noorah101

Yes, the criminal damage thing will come up no matter what visa you choose. I was just wondering if you were clear on what route you're taking.

Seems that your girlfriend will return to the USA and start the fiance visa petition for you. 8 to 10 months later you'll get your K-1 fiance visa, then you'll come to the USA to marry and remain here. Sounds like a good plan.

I'm sure someone will be along to answer your criminal damages question.

Good luck to you.
Rene

markno1

Thanks for your hlp, i take it the easier route would be to marry in the UK and do everything here, or alternatively marry in the USA and do everything there.

Noorah101

The easier route would be to marry in the UK and have your wife file the I-130 directly to London. Then she is free to return to the USA while you wait for the visa process in the UK (around 4 - 6 months).

The second way you mention, marry in the USA and do everything in the USA, is the fiance visa route you are already thinking of. The only way to marry in the USA and continue to remain in the USA is via a fiance visa.

Another alternative is to come to the USA on the VWP and marry in the USA, but then you must return to the UK for immigrant visa processing.

A good question might be if you are eligible to use the VWP with a charge on your record. I'm not sure of that one. I think you can, you just have to declare it. But again, someone more knowledgeable can address that issue.

Rene

Folinskyinla

Hi:

A conviction may or may not affect your immigration. More details are needed. Make sure you KNOW the immigration consequences before entering a plea. It is common practice in the US [required in California State Courts] to alert a person entering a guilty plea of possible US immigration consequences. Somehow, I don't think it is all that common in the UK.

You may want your solicitor to consult with a US immigration lawyer on this. Also, I have no idea of how plea bargaining works in the UK, if allowed at all.

markno1

The criminal damage will stand as i admit my guilt.

The reason we are awaiting trial is because i have pleaded not guilty to the other offence in the hope of being able to stand trial in front of a jury.

There is a possibility that the latter offence may got dropped to a public order offence with no racial element.

I have never been in trouble with the law before this in my entire life.

ian-mstm

In case you're not aware, "marriage in due course" = "within 90 days" of your entry to the US on a fiance visa.

Ian

Tracym

Keith was telling me that (in Scotland at least) there is no plea bargain. But if a person admits their guilt, the judge is often more lenient with the sentence. He say that (unlike our system) it is not arranged in advance however.

Not sure if England is the same, so perhaps that isn't too helpful.

Targaff

In England you get credit for a guilty plea but how much credit depends at which stage you admit guilt (if you're represented by a solicitor at Police interview they should advise you about this). As far as a plea bargain is concerned, what you can do is plead guilty "on a basis", which is essentially a guilty plea accompanied by your side of the story. Whether or not that explanation is accepted is another matter...

I'm a bit surprised they've pursued something as mild as pushing over a water cooler - I've seen GMP let people off with a warning for breaking into a building because they were drunk and wanted somewhere to sleep...

Tracym

That's different from plea bargain in the US. Here (hope I explain this correctly), you bargain with the States Attorney (lawyer for the government) and agree on a sentence in exchange for the guilty plea. The judge pretty much always then passes that sentence. So it's basically all set and agreed to before you even go in front of the judge.

markno1

Its because i was arguing with someone who isnt white and he is using the race card, it was a nothing incident and should have been dealt with accordingly.

The nicest thing i could wish anyone in this Labour government that is intent on making the majority of people criminals is an early death.

Folinskyinla

Hi:

Even within the US, the practice varies wildly. In the Federal system, there is no binding plea bargain. The AUSA can only agree to RECOMMEND a particular sentence -- however, the Federal system requires a very formal hearing where the defendant is made very clear on what she is pleading to and she has to admit the factual basis. The AUSA must go through an examination of the defendant: "Do you admit to fact #1 that..." and so forth. And there is a warning that sentencing is up to the judge and not a matter of bargaining.

However, when the sentencing guidelines were mandatory, this allowed for bargaining as to what facts the person could plead guilty to. However, the Supremes have recently taken the "mandatory" out of the guidelines. [They have also taken factual findings supporting sentence enhancements from the exclusive jurisdiction of the judge -- this decision in favor of criminal defendants has had an adverse effect on aliens who go to trial, but further promotes plea bargains -- go figure].

California state practice is for a cursory "counsel admits there is a factual basis" for the plea. A lot looser that Federal practice.

An interesting case was "Chang" in the 9th Circuit. He was convicted in a check kiting scheme by which he stole over $100,000. The "aggravated felony" cutoff of a "theft crime" is $10,000. Chang plead guilty to one count of passing a bad check of $960 and was ordered to make restitution of $100,000 in addition to his prison time and fine. Aggravated felon or not. Former INS and the BIA certainly thought so.

I have a case which will involve a guilty plea & conviction in Federal Court where the amount involved in the plea was "an amount exceeding $5,000" -- the guy had been arrested as a major domo in a conspiracy in which he was only a bit player. He had known of the fraud ring, had refused to participate in it himself. However, several aquaintances in desparate need of money had asked him for help and he said "Call so-and-so." He made ZERO dollars off this casual act -- but it led to losses of $31,000 to the victims. The plea and conviction was entered into on September 26, 1996. His attorney had totally ignored the fact that the threshold for immigration purposes was to be lowered retroactively four days later from $100 K to $10K. [It is not considered malpractice for lawyer not to have a working crystal ball or other powers of clairvoyance, but I digress].

I was able to get him adjusted with a waiver [strangely, aggravated felony is not, per se, a ground of inadmissibility]. The question will come up when he goes to naturalize -- was he convicted only of theft of $5,000.01? I really don't know -- it will be interesting as a case of first impression.

Bluegrass Lass

So let me get this straight: you (a caucasian male?) were arguing with someone (non-caucasian). You pushed over a water cooler, possibly resulting in some private property damage, but not hurting the other person in any way. At the same time, you possibly used some foul language as one is wont to do when angry. And this guy is pressing charges against you, and this hasn't been thrown out of court yet?

Wow! AFAIK, that wouldn't fly where I live in the US. In the heat of anger, many people say things but as long as no one was physically hurt, there's no basis for pressing any charges.

I'm sorry to hear you are having such a rough time of it, and hopefully you will get some good advice on the immigration front. I'll have to remember to watch what I say in the UK in the future, I suppose. Good luck!