oceansblue

Hi folks and thanks for reading,

I'm a British citizen and married to a Canadian citizen. We currently reside in toronto canada due to the pandemic, although i'm here on a visitors visa only.

She's been offered the opportunity to apply for the L1 or L2 visa as she's been with her company for some time now, and should the L1 process fail, we may pursue the H1-B for her. I would then either be applying for an L2 or a H4.
Regardless of the route we may take, I fear that I may be found inadmisible to the US due to my U.K criminal record.

The conviction was for harassment (without violence) where I had contacted someone via text and emails, and I was served with a restraining order and a total of £510 (£30 victim surcharge). The sentencing was 5yrs 3 months ago and the conviction was 5yrs 10 months ago.

Thus my worry is if my wife proceeds with the L visa or H1-B visa, only to then find that I, (as her spouse) would be found inadmisible due to the crime.

My questions are:
Is there a way to know if i'm to face inadmisibility prior to my application?
Does this count as a crime of moral turpitude?
What are my chances of getting denied or approved?
Is there anything I can do to strengthen my application?

I appreciate this is a slight shot in the dark but we are pretty anxious as we need to make a decision to proceed fairly quickly.

Many thanks folks!

shiversaint

So a few things to unpack here but on the face of it I would guess you're possiby okay.

You will have to disclose the conviction during your application for a non immigrant visa. You will have to furnish an ACRO certificate from the police, and a VCU1 detailing the crime(s).

In general, from what I understand, harrassment is not a crime of moral turpitude unless it includes an element of racism or violence.

Some reference on crimes involving moral turpitude, sourced from ilrc.org:

Even if you were found inadmissable (I would say this is likely if you intended to terrify the victim, or if there was a threatening or primarly sexual nature), you have the potential to be recommended for a waiver of inadmissability. Given the time since your crime and relative lack of severity of punishment and what it sounds like as overall lack of severity, I would expect that in this outside scenario, you'd be recommended and granted a waiver anyway.

As ever it depends on the facts of the case and what you did. I would imagine competent legal counsel could word your VCU1 in a factual way that will reduce the chances of you are being found inadmissable, if there are some more "questionable" elements. I can completely see a scenario where you'll be fine and will get a visa with no issues, though.

Some advice which applies to everyone here - don't lie, and don't give information you have not been asked for. There is a tendency to "spill your guts out" in the name of honesty in front of immigration officials when first confronted with one's criminal past, and they will just sit there and listen, and wait for you to say something that allows easy latitude to deny you a visa/entry/anything else. From this moment on you need to proceed in a very rational, pragmatic way. Follow the instructions you're given, do nothing more or less.

civilservant

Canadian citizen living in Canada wanting to work in the US.

Why not TN visa? Profession not appropriate for one?

oceansblue

Yes, the TN is available, however, I would then receive a TD visa, which will disallow me from ever working the the US - also, with a TN/TD visa, you can never apply for a green card.

civilservant

She could start working a lot quicker on the TN, then transition to the L1 or H1 when/if approved.

From the approved L1/H1, a Green Card is possible.

You cannot work on an H4 either.

To your actual initial question, I do not see your criminal history presenting a huge problem. You just need to address it head on and go ahead and request the paperwork from ACRO and the service/courts that dealt with your case.

oceansblue

Thank you so much for the detailed answer here - it really helps!
I, too do not think that i fall under moral turpitude as it wasn't a threatening crime, physical or otherwise, nor was it a sexual crime.
But my fear is that she will receive the L1, accepted the proposition from her work to move, only for me to get rejected and denied entry - it would be pretty a embarrassing situation for her at work - not to mention the heartache it would cause us.
You mentioned the VCU1 form - is this something that would be submitted with my DS-160 form? Or is this something i have to bring along to the interview?
Also, as we are in canada now and most likely drive to NY from Toronto, would the VCU-1 still apply?
Thanks again!

oceansblue

Yes, we did some research on this, but then I would still be unable to work for quite sometime - could be up to 2 year via that route. Especially if we go via the H1-B visa, as i understand that this is a) a lottery b) applications must be submitted in a 2 week window in march.
So L1 is the best route - as we are pretty sure she will receive it, and i can work within a couple of months of arrival there.

I appreciate your replies!

GeneralPowerpoint

If you go the H-1B route you won't be able to work at all unless your wife is subsequently approved for a green card. Ordinary spouses of H-1B holders don't qualify for work authorization.

If you go the L-1 route then you may be able to work immediately on arrival as the USCIS recently changed their policy such that L-2s don't need to apply for a work permit.

oceansblue

Yes, we read the same thing rearding the new L2 changes

Any thoughts on the criminality aspect and whether this will cause a problem, moral turpitude and if a waiver would be required (and of course if i'll be denied)?

S Folinsky

I am a retired immigration lawyer. Your questions goes into one of the fuzzier areas of immigration law. Crime Involving Moral Turpitude (aka CIMT) is a term incapable of clear definition combined with the application of US law to a foreign offense. Let’s not get into the “categorical approach” or the “modified categorical approach” inasmuch as those terms aggravated my tendency for migraine headaches. Even if a CIMT, there might be the “petty offense” exception.

Back in the day, a constant thorn was that in many countries there was strict criminal liability for theft for inadvertently writing a NSF check. It was a theft offense.

I wish you the best of luck. Legal consultation may assist you in evaluation of potential problems and resolution thereof.

destone

Why not take up Canadian citizenship first? Then you both can work on TN. Green card is irrelevant here as your initial question pertains to a job offer and not permanent relocation.

shiversaint

The VCU1 form is supplied during your interview for the visa, it's just a record for the exact offences.

There are four possible outcomes:

1. You receive a visa with no obstruction at all because the consular officer does not deem your crime a CIMT. The way you have described it suggest this is increasingly likely to me. While I agree with Folinsky that CIMTs are muddier than grey, this one seems pretty clear.
2. You're denied a visa because the conff thinks it's a CIMT, but you're recommended for a waiver of inadmissability. This can take 6 months to arrive after your interview date. Outcome: you goto the US but you'll be held back. Your partner will be able to go ahead of you.
3. You're denied a visa, recommended for a waiver but DHS decides not to grant it. This is fairly unusual. It would likely be because of the amount of time since the amount of crime, which makes it even less likely IMO.
4. You're denied a visa and not recommended for a waiver. End of the line, depends on the reason given, speculation would be pointless.

In my non-qualified experience of listening and advising lots of people requiring waivers on this forum, you're in situation 1 or 2, and my instinct says more towards 1. You could always do a consultation with an immigration attorney and see what they think, one experienced with convictions.

S Folinsky

How do you reach these conclusions? Curious mind would like to know.

oceansblue

Thanks for your question - taking the citizenship will of course take a longer course of action - and her job offer is on the table now. She will need to have worked at the company 'from overseas' for at least one year to be able to qualify. So at the end of March/April, she will qualify.

oceansblue

Many thnaks for your detailed response -- I do hope i fall into the first option here.
I read somewhere online regarding the waiver that if it is submitted via an attorney in the US, then the waiting tiem for the waiver process can be in as little as a month - am i correct here?

She will have access to use her company's attorney - or at least i hope she does - thus they will be (i think) handling my case also as im a spouse of the applicant.

Finally, this is just a shot in the dark - but do you think that I should apply for an ESTA and see if there are any issues? i.e. if there is an interview process that i have to go through, and be granted entry to the US under ESTA (while admitting to the crime etc), this might help when I apply for the L2 visa in a couple of months?

Also please bear in mind this will be done in Canada as thats where i am currently on a visitors visa.

Thanks!