potentialexpat

Super, thanks a bunch ihaveavisa, great to hear your experience. Section 4 POA isn't discussed all that frequently on here...

ian-mstm

Just to clarify, you must still disclose all the incidents. The petty offense exception only kicks in when they're deciding whether or not to approve the visa. If they feel it isn't worth getting their knickers in a twist (read = it's a petty offense), then they'll likely issue the visa. But you still have to make the initial disclosure.

Ian

potentialexpat

Absolutely, will certainly not hide any of this.

potentialexpat

All,

As a little update to my situation I thought I would fill you in with the results on two legal consultations (and also as an insight in to those considering consultations). Firstly, I chose two reputable (recommended on this website), UK based and pricey immigration lawyers. Both of the lawyers provided valuable insight to the process, how I should present myself and what to expect on the day - as well as tailoring my DS-160 appropriately. What the lawyers were unable to do was to provide solid advice on my situation, both suggested that I should be fine (one went as far to say the odds were 65-35 in my favour). However, both expressed separate concerns with my offences, one lawyer stated that I was unlikely to benefit from the petty offence exception as my convictions occurred from a single scheme of misconduct - this is something that I have certainly never seen mentioned before. What both of the lawyers indicated was that a lot of this comes down to performance on the day and how I present myself.

For those in 'gray area' scenarios a legal consultation is unlikely to definitively clarify things but certainly provided me with some clarity. I must admit the non-scientific nature of the decision does scare me slightly.

crg

The crimes one was convicted of and the sentence are 99.9% of it. The "performance" does not make up the other .1@% as far as if a waiver is required or not. The consular officer isn't going to say "Well, he's criminally ineligible, but what a wonderful, charming person. Here's your visa, let's go to lunch!".


The performance may come into play when considering if the person is otherwise fit for the visa.

potentialexpat

Thanks crg, I appreciate the comments and that was my understanding also. I am merely relaying what I have heard from my consultations to help others considering them. I can believe that when you have such an ill-defined concept and a single human making a decision 'human factors' can come in to play, particularly when people's crimes fall in to potential grey areas.

One thing I would like to get people's thoughts on is personal references - I have been offered references, to take to the consulate, by probation and my unpaid work manager. My understanding was that these would not be considered by the CO and therefore I should not waste time by getting people to provide them, does anyone out there have any experience of this?

ian-mstm

I'm not a huge fan of character references since they subsequently call into question the character of the person providing the reference. However, in this case, I think a reference from a probation officer might help a fair bit. At any rate, neither will hurt - so go ahead and take them.

Ian

crg

I can't weigh how an individual consular official would perceive such references. One may like them, and it may emphasize the incident to another. I suspect that the probation officer and work manager have form letters all ready to go so I doubt it would involve much work from them.

The offenses may not even be CIMTs. None of them "scream" CIMT. The consulate likely has a cheat sheet of crimes with CIMT, not a CIMT, and may be a CIMT next to each based on other applications they have processed. The consular officer may just check the list and disregard them. The first thing they do for each offense is determine if it was a CIMT or not. If only one is a CIMT they look at max sentence possible and actual sentence imposed. So if only one is a CIMT then you would meet the criteria for the single petty offense exception.

If the incident involved alcohol and was within the last few years, you may be referred for a medical exam.

potentialexpat

Thanks all and understood. I will keep the forum posted with my experience.

S Folinsky

That "ill-defined" concept has been commented on by the Board of Immigration Appeals and the courts from time to time. That said, there is a legal concept outside of immigration law of "malum in se" and "malum prohibitum." CIMT generally attaches to malum in se [but not always].

In relation to your comment about a "single human being," the definition of a CIMT is a "legal question" which is often referred to the Visa Office in the Department of State if there is a question.

Also, if there is a doubt, the US immigration law is permeated with a presumption of "no" when applying for a visa. This is the opposite of the presumption of the criminal law. [BTW, the burden presumes that a person is not "deportable" when in the United States. However, the burden is a lot lower than that in criminal prosecutions].

hungryhorace

To your point, none of those sounds like CIMT's.

You will be pleased to know that using words that may offend people, however abhorrent society considers their use to be, will not get you arrested or incarcerated here in the US - unlike the UK which now specialises in locking people up for speech 'society' finds disagreeable.

hungryhorace

Not at Federal level I don't believe, given unless it was considered 'fighting words', you can pretty much say what you damn well please thanks to the First Amendment. There are laws concerning hate crimes in the US (18 U.S. Code § 249 - Hate crime acts | LII / Legal Information Institute) but these do not cover speech, but rather are entirely centred on violence committed.

The UK could learn a thing or two from the US in this respect IMHO.

potentialexpat

I agree with your final point hungryhorace. In my case, defence, prosecution and judge agreed that I did not have any racist intent, nor that I was motivated by any inherent racism, however, as it was perceived as racist by the accuser I was convicted.

S Folinskiy - completely understand your input, having had time on my hands I have familiarised myself with a good chunk of case law around assaults, as well as a range of decisions from USCIS (Matter of Fualaau etc.). I have however struggled to find conclusive decisions either way on the Section 4 matter. It could be read as either a simple assault, or disorderly conduct, which both are fine for myself. However, the element of 'threatening behaviour' has been classified as MT in harassment cases. The immigration attorneys were making clear to me, I think, that the person making the decision is by no means a seasoned legal expert and so there will be an element of variability. Personally, I really hope that they have a checklist type system in place so that I at least receive a consistent decision.

hungryhorace

A common scenario in the UK unfortunately. I hope you get things sorted and you can emigrate here where you can say what you wish without fear of penalty by the state.

potentialexpat

My interview is coming up this week and just wanted to check I have gathered the right documents, if anyone has any thoughts / advice I would be grateful to hear them!

I am planning on providing;

Passport (obviously)
All the Sevis evidence, DS-2019, DS-160 confirmation etc.
Evidence of property ownership in the UK
Evidence of employer sponsorship for my course, and requirement to return to a UK job
Letters from family and girlfriend confirming my ties to the UK
Savings account statements and loan agreement from the institution in the US to finance my living costs

ACPO Certificate
VCU01
Personal references from probation, unpaid work and professionals who know me personally
Copies of statutes relating to the offences I was convicted of
Charging sheet to confirm the statutes I was convicted of
Signed copy of 'personal statement' which I included in the arrest / caution / conviction section of the DS-160

I realise that much of this may not be required or looked at by the CO, however it helps me feel a little better if I have it with me...