crg

We all can use more coffee!

karenkaren1

i am hoping that the fact he cancelled 2 upcoming trips (flights, cars & hotel all booked), as soon as he knew he was inadmissible....goes in his favour and shows there was no wilful misrepresentation. I am well aware tho, that ignorance isn't a defence.

carcajou

I agree that the poster will ultimately be given entry.

However, the burden of proof is absolutely not on the government for immigration matters.

People misunderstand "innocent until proven guilty." Immigration and the criminal justice system are two wildly different things. That burden of proof exists in a federal/state/local prosecution in a criminal court.

An immigration matter is not a prosecution in a criminal court. If you contested a decision in the courts - that would also not be a criminal matter (nobody would go to jail if your rejection was reversed) and that burden would not apply.

It is also not true in a civil case, which is how someone like OJ Simpson could face government prosecution and be found not guilty in criminal court, but then get successfully sued for millions by the Goldmans in a civil court. The jury and the court system may care that a person was acquitted in a criminal court; or they are totally within their legal obligations to not give consideration to the verdict in the criminal court, as the civil suit is different from the criminal one.

This is also true in a corporate fraud examination. A company doesn't need to "prove beyond a reasonable doubt" that you engaged in fraud to fire you. They can just do it. If they did it wrongly or broke your contract, then you can sue in a civil court as recourse.

So, yes, it is on the applicant to prove there was no willful misrepresentation. A non-citizen has no guaranteed right to enter the US. Immigration is not the criminal justice system. Immigration issues such as overstaying, etc are not criminal acts, they are considered civil violations and that is the legal code that applies.

ian-mstm

Which, as I've noted, is impossible to do... so therein lies a paradox.

Ian

md95065

Indeed, but, conveniently, that is not the US Government's problem - it is the applicants' problem ...

karenkaren1

Could I ask another question please.... Just supposing my husband got the waiver of inadmissibility, and gets his L1 approved, we would hope that this would progress naturally to a green card further down the line. Would he then need a further waiver f(i601) for the green card, from the research I have done, I can see that 'if' this is the case, one of the criteria is that he has dependent USC who would suffer extreme hardship if it wasn't granted?!?

Noorah101

I dont know if he would need a waiver for a green card application, but he definitely won't have a dependent USC. You would be the dependent, and you'd be on an L2 visa. You wouldn't be a USC.

Rene

karenkaren1

hi yes, I realise that, that is my point tho (hence me asking the question)....

* I am trying to ascertain if the 2nd waiver would be necessary once he is in USA, thanks so much for your reply

shiversaint

I believe he will. He's lucky because it's a singular offence under 30g of cannabis - literally any other drug or multiples would make him totally ineligible.

karenkaren1

thanks for your reply, 'if' he needs the 2nd waiver further down the line... he won't be able to get it as he doesn't qualify for having the USC dependents

Noorah101

I thought 601 waivers were only for visas, not adjustments of status, but I'm not a lawyer so could be wrong.

Rene

karenkaren1

I am hoping you are right! thanks

ian-mstm

He will not need a waiver. Waivers are required to overcome an inadmissibility to the US. Since he'd already be in the US in legal status, no further waiver would be required.

However, when it comes time to apply for permanent residency, he will need to declare the denied visa and he'll need to explain his conviction. It'll be up to the interviewing officer whether or not to approve the application... but that should take only hours or days rather than months. And again, the time since his conviction will count in his favor.

Ian

karenkaren1

thanks (again) Ian. This forum is a Godsend

crg

The I-601 can be required for adjustment of status as well.

"If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain nonimmigrant statuses or certain other immigration benefits, you must file this form to seek a waiver of certain grounds of inadmissibility. Please refer to the instructions to determine whether you should use this form."