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Petty offense exception eligibility

Petty offense exception eligibility

Old Aug 5th 2015, 1:38 pm
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Default Petty offense exception eligibility

Hello,

This is my first post so I apologise if this has been asked already!

My partner has just applied for a B1 visa as he has a business trip to the U.S. in October. He's only just done this now as we were reading up on ESTA's and we found he would be refused due to a criminal conviction.

13 years ago he was arrested and convicted of theft - he was badly set up by a manager at work anyway, he paid back the money and was sentenced to 80 hours community service and had to report to a probabtion officer for 12 months, there was no prison sentence or suspended sentence given.

This is his only conviction and based on the petty exception rules I believe he's eligible, but does he need to take anything to his interview appointment with him to prove this other than his police certificate and information from the court regarding what his sentencing was? And will he need to mention 'am I eligible for the petty offense exception' or will the person interviewing know this based on the information provided?

He is also going to be moving to a U.S. office so will be applying for an L1 visa later this year so we're trying to see if the petty offense exception rule will help avoid an application for a waiver, as we know they are a very length process at the moment!

Thanks in advance :-)
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Old Aug 5th 2015, 4:04 pm
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Default Re: Petty offense exception eligibility

Legal advice may be in order:

One, is there a "conviction" or an "admission" for purposes of US law.

Second, the petty offense exception has two prongs -- the maximum possible sentence and then the actual sentence.

When I was in practice, I insisted on seeing the paperwork -- client's recollection was often wrong, sometimes badly so.
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Old Aug 5th 2015, 5:04 pm
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Default Re: Petty offense exception eligibility

Originally Posted by madness0810
My partner has just applied for a B1 visa as he has a business trip to the U.S. in October.
See below... he may or may not be travelling.


13 years ago he was arrested and convicted of theft...
Alas, this is all that matters.


... he was badly set up by a manager at work anyway...
This is irrelevant. At his interview he should not mention this. He should be humble, contrite, and make no attempt to place blame!


... he paid back the money and was sentenced to 80 hours community service and had to report to a probabtion officer for 12 months, there was no prison sentence or suspended sentence given.
The actual punishment he received isn't all that important. What's more important is the maximum punishment he could have received had they thrown the book at him.


This is his only conviction and based on the petty exception rules I believe he's eligible...
That'll often depend on the maximum punishment he could have received.


... does he need to take anything to his interview appointment with him to prove this other than his police certificate and information from the court regarding what his sentencing was?
Generally no, but that doesn't mean they won't want to see something else such as an SAR.


He is also going to be moving to a U.S. office so will be applying for an L1 visa later this year so we're trying to see if the petty offense exception rule will help avoid an application for a waiver, as we know they are a very length process at the moment!
If the petty offense exception applies, he'll likely get the visa immediately. If, however, he requires a waiver, it could take 6+ months to get. There's no way to know, in advance, whether he'll need a waiver or not... that'll be up to the interviewing officer.

If he subsequently requires a waiver for the L-1, it'll take another 6+ months to get.

Ian
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Old Aug 5th 2015, 5:28 pm
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Default Re: Petty offense exception eligibility

How old was he 13 years ago?
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Old Aug 5th 2015, 6:11 pm
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Default Re: Petty offense exception eligibility

Thanks very much everyone.

From what I can see from the sentencing council there is a maximum penalty of 7 years for cases heard by a jury and judge but for cases just heard by a judge the maximum penalty is 6 months prison sentence and level 5 fine. He was only heard by a judge so we're hoping it will fall to the latter, but I could be totally wrong! I guess we will just wait and see how the interview goes and keep everything crossed! He's going with as much information as he can to hopefully help.

He was 26 years old, so doesnt qualify for an exception for being a young person!

Thanks again everyone :-) I will let you all know how he gets on, his interview is on the 16th of September.
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Old Aug 6th 2015, 6:22 pm
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Default Re: Petty offense exception eligibility

Originally Posted by madness0810

From what I can see from the sentencing council there is a maximum penalty of 7 years for cases heard by a jury and judge but for cases just heard by a judge the maximum penalty is 6 months prison sentence and level 5 fine. He was only heard by a judge so we're hoping it will fall to the latter, but I could be totally wrong! I guess we will just wait and see how the interview goes and keep everything crossed! He's going with as much information as he can to hopefully help.
I think you mean 7 years at a Crown Court or 6 months at a Magistrates Court. In effect the maximum sentence for either is 7 years because if the Magistrate believes that the offence warrants a sentence of more than 6 months, they can send the person to the Crown Court just for sentencing.
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Old Aug 6th 2015, 7:20 pm
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Default Re: Petty offense exception eligibility

Originally Posted by lansbury
I think you mean 7 years at a Crown Court or 6 months at a Magistrates Court. In effect the maximum sentence for either is 7 years because if the Magistrate believes that the offence warrants a sentence of more than 6 months, they can send the person to the Crown Court just for sentencing.
That's what I was worried about. He's going to speak to an immigration lawyer about what's best, possibly cancelling the B1 visa application and then waiting to apply for the L1, he doesn't want a denied visa application on top of the criminal record issue to be more of an issue and he'd rather miss a short business trip if it helps his L1 application!

Thanks again :-)
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Old Aug 6th 2015, 7:42 pm
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Default Re: Petty offense exception eligibility

Has he already paid the fee for the B1/B2? If so, it's too late cancel. If he cancels after paying the fee, it's considered a denial, so might as well attend the interview.

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Old Aug 6th 2015, 8:18 pm
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Default Re: Petty offense exception eligibility

Originally Posted by madness0810
That's what I was worried about. He's going to speak to an immigration lawyer about what's best, possibly cancelling the B1 visa application and then waiting to apply for the L1, he doesn't want a denied visa application on top of the criminal record issue to be more of an issue and he'd rather miss a short business trip if it helps his L1 application!

Thanks again :-)
I don't think it matters. Getting a waiver for a single 13 year old theft is pretty much a slam dunk. Of course waiting could give the lawyer time to soak him out of a few thousand bucks, and that's important... for the lawyer... Of course if he has the means and it makes him feel warm and fuzzy, it may be money well spent especially if there are long term plans.
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Old Aug 6th 2015, 9:33 pm
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Default Re: Petty offense exception eligibility

Originally Posted by Noorah101
Has he already paid the fee for the B1/B2? If so, it's too late cancel. If he cancels after paying the fee, it's considered a denial, so might as well attend the interview.

Rene
Yes he's already paid the fee. I think he'll have to go to the interview with everything he has & just see what happens.
Does anyone know if it makes things harder when applying for a second visa if the first one was declined? When his B1 visa is declined is there any point pursuing down the waiver route if he will be applying for an L1 visa in a few months, as the B1 visa was only for a trip this October for a conference that's held in the U.S. every 2 years!

I'm so confused by it all!
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Old Aug 6th 2015, 9:38 pm
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Default Re: Petty offense exception eligibility

Originally Posted by madness0810
Yes he's already paid the fee. I think he'll have to go to the interview with everything he has & just see what happens.
Does anyone know if it makes things harder when applying for a second visa if the first one was declined? When his B1 visa is declined is there any point pursuing down the waiver route if he will be applying for an L1 visa in a few months, as the B1 visa was only for a trip this October for a conference that's held in the U.S. every 2 years!

I'm so confused by it all!
Not under these circumstances.

Most B-1 visas are declined for 214(b) (presumption of immigrant intent or the activity in the US isn't allowed under B-1).

An L-1 is allowed to have immigrant intent so isn't subject to 214(b) denial.
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Old Aug 6th 2015, 10:20 pm
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Default Re: Petty offense exception eligibility

Originally Posted by madness0810
Yes he's already paid the fee.
In that case, he should go... because there are only two possible outcomes from a visa application: approval or denial. Anything that isn't an approval is considered a denial... anything at all - including not showing up!


Does anyone know if it makes things harder when applying for a second visa if the first one was declined?
That'll depend on what the 2nd visa is. If it's a B-1/2 then perhaps... if it's some other visa type, perhaps not so much.


When his B1 visa is declined is there any point pursuing down the waiver route if he will be applying for an L1 visa in a few months...
No.

Ian
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Old Aug 7th 2015, 2:16 am
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Default Re: Petty offense exception eligibility

"When his B1 visa is declined is there any point pursuing down the waiver route if he will be applying for an L1 visa in a few months..."

If he needs a waiver, the B will be initially declined while they decide whether or not to grant the waiver so that is worth pursuing. This is because there is no pending visas. They sit as refused while they think about the application. If approved, the refusal is changed to "issued".
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Old Aug 7th 2015, 12:23 pm
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Default Re: Petty offense exception eligibility

Originally Posted by crg
... so that is worth pursuing.
When he applies for an L-1 visa, the B-1 waiver will not yet have been adjudicated, therefore the B-1 is going to show as denied regardless. If the B-1 waiver is subsequently approved it'll still make no difference to the L-1. It won't matter if the L-1 is approved immediately or if the L-1 also requires a waiver. One isn't dependent on the other. Since it'll make no difference to the L-1 process, the B-1 waiver isn't worth pursuing if the B-1 is denied.

Ian
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Old Aug 7th 2015, 1:47 pm
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Default Re: Petty offense exception eligibility

Originally Posted by ian-mstm
When he applies for an L-1 visa, the B-1 waiver will not yet have been adjudicated, therefore the B-1 is going to show as denied regardless. If the B-1 waiver is subsequently approved it'll still make no difference to the L-1. It won't matter if the L-1 is approved immediately or if the L-1 also requires a waiver. One isn't dependent on the other. Since it'll make no difference to the L-1 process, the B-1 waiver isn't worth pursuing if the B-1 is denied.

Ian
Thanks Ian, that's what I was wondering if the B1 waiver is applied for because of his criminal record then he has to apply for the L1 visa before that waiver comes back would they use the existing waiver application if the L1 visa was also only declined because of the criminal record or have to start the waiver process from scratch because it's a different visa?

Either way we're in for a long wait by the sounds of things.

His appointment is on the 16th of September so I'll leave an update once he's been :-)
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