Petty offense exception eligibility
#1
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Joined: Mar 2015
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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 :-)
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 :-)
#2
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.
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.
#3
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Joined: Aug 2002
Location: Kentucky
Posts: 38,865
Re: Petty offense exception eligibility
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...
... 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?
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 he subsequently requires a waiver for the L-1, it'll take another 6+ months to get.
Ian
#4
American Expat
Joined: Jan 2004
Posts: 7,598
Re: Petty offense exception eligibility
How old was he 13 years ago?
#5
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Joined: Mar 2015
Posts: 8
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.
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.
#6
Re: Petty offense exception eligibility
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.
#7
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Re: Petty offense exception eligibility
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.
Thanks again :-)
#8
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.
Rene
Rene
#9
American Expat
Joined: Jan 2004
Posts: 7,598
Re: Petty offense exception eligibility
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 :-)
Thanks again :-)
#10
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Re: Petty offense exception eligibility
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!
#11
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Joined: Jan 2004
Posts: 7,598
Re: Petty offense exception eligibility
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!
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!
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.
#12
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Joined: Aug 2002
Location: Kentucky
Posts: 38,865
Re: Petty offense exception eligibility
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!
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.
No.
Ian
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...
Ian
#13
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Joined: Jan 2004
Posts: 7,598
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".
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".
#14
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Location: Kentucky
Posts: 38,865
Re: Petty offense exception eligibility
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
Ian
#15
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Re: Petty offense exception eligibility
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
Ian
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 :-)