chrisncarla

Help Please.

My wife is American and so are my two young children (dual), we have decided to sell up and move to the states. We sent the I-130 to London in August, but we may have a little problem, I got a criminal record at 18 years old (19 years ago) for theft, I pleaded guilty as advised by my solicitor, I got a fine of £100. stupidity at the time. I have had a CRB check done a standard and enhanced check for different jobs but it showed nothing. I have applied for a ACPO police certificate and I am still awaiting that to come through, and I have tried to find my orignal court listing but can not find it online. Will this stop me from getting a visa?
Any suggestions, advice thank you

fatbrit

So theft is most often a CIMT. And presumably you've been to the US a few times and ticked that box on the I-94W (the green card) where it says you didn't commit a CIMT.

So you've got two or more dings: the theft....and then lying about it. The latter is probably worse than the former, given the time since the former.

But it should still be perfectly doable. If you're unlucky, you'll need a waiver. You've either got a lot of research to do or it's time to start choosing an attorney with a proven track record of this particular issue with the London consulate. Your Google search word is "I-601".

chrisncarla

thanks for your reply, would I have to file the form if I am rejected?

fatbrit

The process if you have to go through it is:
Apply for immigrant visa -> get denied -> file for waiver.

Get an attorney is my advice since this is not DIY-land for most people. Stuff you do now can influence what happens later on.

Songbird

Given the time period (and the crime ) then it's highly unlikely it would show on a Subject Access Report ( SAR) which is the standard police check. IIRC in 2006 a lot of such offenses were part of the 'step down' process - hence although a SAR wont revel it, someplace, somewhere there will be a record held but for the purpose of a SAR it wont show. As far as immigration is concerned a SAR is what is required HOWEVER ( and thats a big however) you are required to provide documentation in the event of you ever having being arrested / convicted of any charge regardless of whether or not the SAR comes back 'clean'. The onus is you to do this hence rather than waiting around for probably yet another 'clean' report you need to obtain your Memorandum of Conviction. (MOC). A MOC is the court record of your conviction. It will contain the following details;
a ) Date of the offence
b ) UK penal code / statue under which you were charged
c ) Nature of the offense (i.e. briefly why you were charged)
d ) Your plea, and sentence

1. Contact the criminal records clerk of the magistrate court you were tried in. Explain that you need the Memorandum of Conviction (MOC) for your case. Ideally you would be able to give them the date, if not as close to it as possible.
2. Like any other official docmentation of this nature they will require evidence of your identity. If you are still in the same area that's not a major problem. If not then it's a little bit more difficult but not impossible ( I obtained mine from the UK while being in the USA)
3. For the purpose of immigration certified copies will be required, signed by the court clerk
4. There will probably be a charge for the MOC but it is relatively inexpensive.

Set about obtaining the MOC now as a matter of urgency as it can take a little bit of time to get. Ideally you want to be in the position whereby when interviewed you can discuss it,and hand over the documentation. It could be the case that you are NOT inadmissible under the Petty Exception clause (an immigration lawyer would be able to properly advise you on this). The following is taken from Norton Tooby's newsletter and may be of some use to you to read. http://www.criminalandimmigrationlaw...U_04_04_06.php (AFAIK it's still current) Briefly it states that you will not be inadmissible, on account of a conviction or admission of a CIMT, if three requirements are met:

(1) You committed only one crime involving moral turpitude, at any time
(2) You were not sentenced to a term of imprisonment in excess of six months
(3) The conviction carries a maximum possible sentence of one year or less (*please note that's the possible MAXIMUM sentence you could have received and not the actual one you were given - a very important qualification)

As to prior ( if any ) entries on the VWP, fatbrit could well be right this may be an issue. In my case fortunately it wasn't but one experience cannot be generalized so be prepared for that as well in the event that it is raised. I'm guessing if it is an issue then you would be asked to explain why you used the VWP when you clearly were not eligible. Although ignorance of the regulations is not an excuse, there is a difference between that and willful intent to defraud or misrepresent. Hence if like myself and others who have been in that position you didn't know that your offense was a CIMT, or you assumed that your conviction was 'spent' and didn't have to be disclosed (as detailed in the Rehab of Offenders Act) thats a lot different than say if you had just recently been convicted, knew what a CIMT was and then deliberately sought to conceal that. Bottom line you can't change what has happened or what you have done the best you can do now (if asked about the VWP entries) is be honest and truthful. Afaik ultimately it's down to the IO if they perceive it be fraudulent use, in which case you would require a waiver to overcome that.

Because of the importance of this then I second fatbrit's advice in seeking an interview with an immigration lawyer. From what I have heard /read the London Embassy is not as difficult as some others in dealing with these matters but with an attorney to help guide you the path will be a lot easier. At the very least have an initial consultation, which can help you identify what possible problems you may encounter and decide from there if you want to retain their services.


(NOTE* I am NOT a lawyer. My advice is purely based upon my limited understanding, which may or may not be correct. In all matters pertaining to immigration it is recommended that if your case has any complications at all then you seek advice from a qualified competent immigration attorney)

ian-mstm

This is great stuff... perhaps it should be a sticky note or put in the wiki.

Ian

Tracym

I agree- very good indeed!

Songbird

Shesh thanks :embaressed_smile:

Few things though - i did kinda throw it together, there are a lot of things in that that ( I think ) would benefit from more clarification . I would happily take the time to sort it out (and correct any wrong assumptions) if people think that the information would be of general use

lansbury

I had full operational access to the PNC until the end of 2006. At that time I was not aware of any "stepping down" of what was held on a criminal record file. If a person had committed an offense if you did a check on their details it would be part of their history. Regardless of when committed, how long ago and if 'spent" under the Rehabilitation of Offenders Act or not. The only way a file got deleted was if a police officer reported to PNC the person had died, or they were born so long ago they could no longer be alive.

The only difference was details of offenses committed prior to 1981 were held on micro-fiche and not the PNC. You had to send a message on the PNC for the fiche to be pulled and the details phoned to you.

If things have changed since 2006 I don't know, but I mention it as you put 2006 in your original comment on the subject.

chrisncarla

Hi All,

Thanks for your advice. I received my ACPO check through yesterday and it shows NO TRACE. I also contacted the local courts but they would have to have exact dates as their computers do not go back any further than 1990. I also had a friend check on the PNC and it shows nothing.

Should I declare it?

fatbrit

There's a mode of thought on here that says you must always be truthful to daddy, regardless. Personally, I don't subscribe to it but would rather use risk assessment.

Rete

Yes, please, Songbird. Expand your post and submit it for the wiki and we will also paste a sticky here of it.

Valuable information for those needing this type of information.

Songbird

a ) Yes you should. The offense itself will not make you inadmissible but the lie (if discovered ) will. IMO it's not worth the risk, no matter how slight.
b ) I had the exact same problem as my offenses dated back to 1978. I begged, pleaded and made a real good friend in the criminal records dept of the court ( actually she is hoping to come out and visit me ) In much the same way the court that I approached only had PC records dating back to the mid-80's but after a few telephone calls this girl set out on a personal mission to locate the files for me in the basement archives. I never had the dates just the year so it took her a fair bit of time but she came through for me If the court is local to you try a personal visit, you might get lucky and get someone to take the time to do the search.
c ) You mentioned you had a solicitor, afaik most solicitors will keep records themselves. Try contacting the brief's office who represented you and obtain the actual dates from them, which you can then give to the courts clerks
d ) If you absolutely cannot get the court records my advice would be to take the clean reports you have got to the interview ( that will show that you have no offenses in the period they cover to date) IMO, the IO being presented with the evidence you have, plus informed of the steps you have taken to try and obtain the MOC might well decide (as your submitted reports are clean) that it will suffice.

You never mentioned if you had taken a consult with an immigration attorney. Might be a good idea to have a one -off with one and see what they advise

No problem - I'll do that and take on board the points made by lansbury