L1 Granted, but CIMT exists

Old Feb 3rd 2015, 3:44 pm
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Default L1 Granted, but CIMT exists


Hi All,

Long time lurker of this excellent forum – excuse the long post, but I am hoping to get some opinions on the best course of action for a predicament I find myself in:

I came over to the US last year on an L1 visa with my wife and family.

I have been living in the US ever since, and have built a great life here, with wife and kids happily settled and work going well for me. I am currently on a temporary contract after which my company would like me to stay on in the USA. This effectively makes the move permanent, which is something that myself and my family all want to do.


My problem is this:

When I was a teenager, although born in England, while in Northern Ireland at age 17 (over 25 years ago), I received a conditional discharge of one year for shoplifting a couple of CDs. A stupid moment of childhood madness and I have never been in any trouble ever since.

At the time, my solicitor said that if I didn’t get into any further trouble, my record would be wiped clean after the year was up, and I would never have to declare it as it happened when I was under 18 – effectively I could forget it ever happened. Ever since, I have never really thought about, or declared it, and had received a CRB check for a previous job application from disclosure Scotland that came back saying “no convictions” (although I am not sure if Disclosure Scotland check Northern Ireland records, or only Scotland, England and Wales).

So when applying for my L1 visa, without even thinking about it, I did not tick the box relating to “Have you ever been arrested for a CIMT…etc.”, believing I was answering correctly.

Having read some other threads on this board since, I have come to realise that I think I should have checked this box, as theft is a Moral Turpitude offence, and all convictions should be declared. I realise that ignorance is not an excuse, but I honestly did not meaningfully or purposefully mean to lie or answer fraudulently on my L1 application form, but what’s done is done.

I know that my offence falls under the criteria for exception, as it was a single offence committed when under the age of 18 as per the below:

9 FAM 40.21(A) N8 SINGLE CRIME INVOLVING MORAL TURPITUDE WHILE UNDER AGE 18 INA 212(A)(2)(A)(II)(I)
(CT:VISA-1318; 09-24-2009)

a. The exception found in INA 212(a)(2)(A)(ii)(I) for an alien who has committed a single crime involving moral turpitude while under the age of 18 allows the issuance of a visa to the alien although the alien was convicted while over the age of 18 if the:

(1) Crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(2) Maximum penalty possible for the crime of which the alien was convicted (or for which the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed). (See 9 FAM 40.21(a) N7.1 above.)


So although, I would have been granted my visa when applying for my L1 (based on the above), my concern is what will happen when I come to renew my L1 visa, or even apply for a green card, should I chose to stay in the US long term.

I am worried that if asked again, and I answer honestly, the authorities will question why I did not disclose this on my original application, and I would be in trouble for being in the US based on an application that could be construed as immigration fraud.

I don’t know what to do, and am really worried about this:

Should I contact someone in the immigration service now to pre-emptively say “I realise I should have disclosed this, but did not?”. Could that result in me and my family being deported?

Should I wait until reapplication time and then answer honestly, explaining that at the time of my original application I honestly believed I was answering the question correctly?

Will I even be asked the question again when my company applies for an extension to the L1? Or will the visa just get renewed if the eligibility criteria are met?

I realise the need to be honest with the immigration authorities, but don’t want to cause a problem for myself if the question will not even be asked. The potential problem is not the nature of the offence, just the fact that I never declared it on my original successful L1 visa application.

I have worked really hard to establish a great life for myself and my family here, and believe I am a valuable member of my local community. I do not want to do anything to jeopardise that, and would be gutted if this stupid mistake ruined everything for me.

So although I know only I can make the decision on how to handle this, I would appreciate any thoughts on what people think would be the best course of action.

Thanks in advance

Last edited by BEVS; Feb 7th 2015 at 4:06 am. Reason: Post edited to remove certain personal details to protect privacy. At OPs request.
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Old Feb 3rd 2015, 5:18 pm
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Default Re: L1 Granted, but CIMT exists

Originally Posted by GrandUSA
I honestly did not meaningfully or purposefully mean to lie or answer fraudulently on my L1 application form, but what’s done is done.
For this to be an issue, the government has to prove that you committed "willful misrepresentation" in responding as you did. If, as you say, there was none, then this is unlikely to be an issue.


I know that my offence falls under the criteria for exception, as it was a single offence committed when under the age of 18 as per the below:
People often cite the "petty offense exception" except that the applicant is not the one who gets to make that call. The offense still needs to be declared and the interviewing officer gets to decide whether or not the offense falls within the exception.


I am worried that if asked again, and I answer honestly, the authorities will question why I did not disclose this on my original application, and I would be in trouble for being in the US for two years based on an application that could be construed as immigration fraud.
It's unlikely that this will be an issue... because there was no willful misrepresentation.


I don’t know what to do...
Insofar as you can't undo the past, tell the truth from now on.


Should I contact someone in the immigration service now to pre-emptively say “I realise I should have disclosed this, but did not?”.
This is likely the worst thing you can do. Do not take this course of action.


Should I wait until reapplication time and then answer honestly...
Yes.


... explaining that at the time of my original application I honestly believed I was answering the question correctly?
No. Don't include any explanation whatsoever until such time as an interviewing officer asks you about it.


Will I even be asked the question again when my company applies for an extension to the L1?
It's highly unlikely, no.


I realise the need to be honest with the immigration authorities, but don’t want to cause a problem for myself if the question will not even be asked.
Which is why you should not pre-emptively contact anyone about this.


I would appreciate any thoughts on what people think would be the best course of action.
I honestly don't think this is going to be an issue for you.

Ian

Last edited by BEVS; Feb 8th 2015 at 9:24 pm. Reason: Ref. editing to OP is all.
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Old Feb 3rd 2015, 5:32 pm
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Default Re: L1 Granted, but CIMT exists

Ian, I really appreciate you taking the time to not only read my very long post, but to reply in such detail.

Your reply has definitely helped me to worry less, and to definitely decide two things:

1. Do nothing for now, and 2. answer everything honestly going forward.

One more question if I may - If I do decide to accept the permanent posting here, and apply for a Green Card - obviously the importance for honesty is just as (if not even more) important in that process. Do you think it would go against me in that process if they see that I declared the Juvenile CIMT when applying for the greencard, but had not on the previous L1 visa application?

Once again - I really appreciate you taking the time to reply. Thank you.
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Old Feb 3rd 2015, 6:44 pm
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Default Re: L1 Granted, but CIMT exists

Ian is not a lawyer. I am. I recommend highly you have an in person consultation with a competent immigration lawyer.
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Old Feb 3rd 2015, 7:03 pm
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Default Re: L1 Granted, but CIMT exists

Thanks S Folinsky.

Do you think this is something I should do now, or when I need to renew my L1, or apply for a Green Card?

Appreciate you replying.
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Old Feb 3rd 2015, 11:07 pm
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Default Re: L1 Granted, but CIMT exists

Originally Posted by GrandUSA
Do you think this is something I should do now, or when I need to renew my L1, or apply for a Green Card?
He likely won't answer. He prefers to make general comments that can't, in any way, be construed as him actually giving specific advice... and the only general advice he ever gives is along the lines of "talk to an attorney".

I, OTOH, have no such issues... so I suggest that if you're going to talk to an attorney, do it sooner rather than later.


Do you think it would go against me in that process if they see that I declared the Juvenile CIMT when applying for the greencard, but had not on the previous L1 visa application?
I don't think it'll go against you. Have you looked at the I-485 form? You're asked specifically if you've ever been arrested, cited, detained, etc. and then are asked to explain why. Since this happened when you were a minor, and it was over 25 years ago, I still don't think you're going to have a major problem.

Ian

Last edited by BEVS; Feb 8th 2015 at 9:24 pm. Reason: Ref. editing to OP is all.
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Old Feb 4th 2015, 8:45 pm
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Default Re: L1 Granted, but CIMT exists

Thanks again Ian.

I have looked at the I-485. It is clear, and I now know how I should answer should I ever get to the green card stage.

For now, my current situation is that if I accept the offer to stay, My company will apply for an extension to my blanket L1 VISA at the appropriate time.


I have also looked at Form I-129 (which I believe is the correct one for an L1-extension), and I can't see anywhere on it where a similar question is even asked.

So in an ideal scenario, I accept the position, carry on as I am until the L1 needs to be renewed, it gets renewed without having to answer the question at all, and I carry on as I am now on the extended L1.

However, what I feel most worried about at this stage - is whether I am currently residing legally in the USA, or is my presence somehow unlawful due to the oversight on my original visa application?

Obviously I am hoping that because there was no willful misrepresentation, my status is legal.

As mentioned in my original post, I obviously don't want to create any problems for myself at this stage if it can be avoided, but don't want to end up in a situation of accepting a longer term position out here, only to discover I have a huge problem because I have been here illegally, albeit unintentionally.

I feel I should inform my employer of this situation if there is any chance it could cause a problem for me or the company over legality of current presence. But if there is no issue with my current status, and unlikely to be one with a future L1 extension application, then avoiding telling them now would be preferable unless they need to know, in which case I would do the right thing.

Grateful for any further thoughts.

Thanks


Last edited by BEVS; Feb 7th 2015 at 4:08 am. Reason: Post edited to remove certain personal details to protect privacy. At OPs request.
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Old Feb 4th 2015, 9:17 pm
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Default Re: L1 Granted, but CIMT exists

<sigh> What does your lawyer say? Curious minds would like to know. Not that the lawyers are always right, but we do have the responsibility to be right. You've got issues and a responsible person should look at them, no?

[On the marriage forum, one poster took my advice and contacted a lawyer whose advice is correct as far as it went, but there is an interim step that should be attempted first.]
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Old Feb 4th 2015, 10:41 pm
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Default Re: L1 Granted, but CIMT exists

Originally Posted by GrandUSA
However, what I feel most worried about at this stage - is whether I am currently residing legally in the USA, or is my presence somehow unlawful due to the oversight on my original visa application?
You had an interview at a US Consulate, you were issued an L-1 visa, your L-1 visa is valid, you were inspected at the POE by a CBP officer, and you were allowed to enter the US. You are currently in the US legally.


I feel I should inform my employer of this situation...
Fortunately, the species homo sapiens has a superior brain that invariably kicks into gear and protects us from doing something really stupid. I trust yours is working okay!


Grateful for any further thoughts.
Since you ask... Mr. Folinsky is right - I'm not a lawyer. The members here hold him in high regard because he is very knowledgeable concerning immigration law... but none of us have ever been his client. We believe what he says, because he is an experienced immigration attorney. His responses can be irritatingly cryptic because, as mentioned earlier, he needs to avoid the appearance of an attorney/client relationship. However, he often sees issues where we don't - and, to that end, I suggest you speak to an immigration attorney and get his professional advice... something which I can't give you despite my belief that this will ultimately not be an issue for you.

Ian

Last edited by BEVS; Feb 8th 2015 at 9:24 pm. Reason: Ref. editing to OP is all.
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Old Feb 5th 2015, 1:09 am
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Default Re: L1 Granted, but CIMT exists

Originally Posted by GrandUSA
So when applying for my L1 visa, without even thinking about it, I did not tick the box relating to “Have you ever been arrested for a CIMT…etc.”, believing I was answering correctly.

Having read some other threads on this board since, I have come to realise that I think I should have checked this box, as theft is a Moral Turpitude offence,
Is it? Are you sure?
A lot of things are stated with great confidence on forums without necessarily being true. Obviously, some categories of theft would be, but all of them, all the time?


and all convictions should be declared.
But were you convicted? Such a long time ago, it's probably not clear what really occurred or not. So perhaps start with a police check to find out exactly what happened?

In addition, even if it were to turn out to be a CIMT, there is the petty offence exception. And for misrepresentation then you should understand that it normally has to be a. wilful and b. material to whether or not you would have been admitted to the United States.

You've had some advice to find a good immigration attorney. I concur. It is importantyou discuss these issues in more detail. Make sure such attorney is experienced ...

And a final point to reflect on. There is a difference between being honest and incriminating yourself. Perhaps consider how you can and should avoid self-incrimination. Be cautious about what you post on public forums.

Last edited by BEVS; Feb 8th 2015 at 9:24 pm. Reason: Ref. editing to OP is all.
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Old Feb 5th 2015, 1:39 am
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Default Re: L1 Granted, but CIMT exists

Thanks all, I will take your advice.
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Old Feb 5th 2015, 2:32 am
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Default Re: L1 Granted, but CIMT exists

Originally Posted by JAJ
Obviously, some categories of theft would be, but all of them, all the time?
Yes. All theft results in harm to someone. Now, there may be degrees of harm, but that's not the same thing.


In addition, even if it were to turn out to be a CIMT, there is the petty offence exception.
Well, you're a bit late to the party, but we'll celebrate your arrival regardless.


Make sure such attorney is experienced ...
I'm not sure why, but I suddenly thought of this:

Ian
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Old Feb 5th 2015, 3:17 am
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Default Re: L1 Granted, but CIMT exists

Originally Posted by ian-mstm
Yes. All theft results in harm to someone. Now, there may be degrees of harm, but that's not the same thing.
Except that so-called "moral turpitude" has never been defined by statute, so it's really a matter of opinion. Which can never be resolved in any specific case, unless and until that matter were to come before the courts. And there isn't any obligation in the law for someone to concede or self-report that a particular incident constitutes "moral turpitude" either. Which is why professional advice is usually a better option than seeking opinions from a public forum.
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Old Feb 5th 2015, 7:45 pm
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Default Re: L1 Granted, but CIMT exists

I agree with Mr. F that legal consultation is in order especially since there is so much riding on this. I disagree with the claim that the government must "prove" willful misrepresentation. Prove? Not so much... Even "establish" may be too strong of a word. It would be more like "determine" or "decide" or even "mistakenly allege" fraud misrepresentation. Since a visa applicant has little ability to contest such a finding it could really wreak havoc on an applicant.

A conditional discharge is a conviction BTW. A suspended sentence of more than six months would make it outside the single petty offense exception. Arrest before 18 is good, but conviction after 18 could be problematic if that happened. The theft of CDs sound petty, but I once heard of someone nailed for an indictable/felony for stealing a pepper shaker from a pub and that sounds petty too. See how this gets complicated?

Last edited by crg; Feb 5th 2015 at 7:50 pm.
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Old Feb 6th 2015, 5:39 am
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Default Re: L1 Granted, but CIMT exists

Originally Posted by GrandUSA
Thanks all, I will take your advice.
If you are going to check your police record ask the Police Service of Northern Ireland how to do it. I don't not believe ACPO will have access to it via the PNC.

Last edited by BEVS; Feb 8th 2015 at 9:25 pm. Reason: Ref. editing to OP is all.
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