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Marrying a Foreign National With a Criminal Arrest History

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  • 09-28-2012, 02:33 PM
    Alleycat13
    Marrying a Foreign National With a Criminal Arrest History
    Please excuse the length of this post. I think we have a somewhat complicated situation and I do not want to leave out any relevant facts, and I am not qualified to determine what information is relevant or not to my questions.

    I am an USC engaged to a British Citizen. We met online, however I lived with him for several months (just over 4) in the UK, and recently returned to the US. We have known each other a total of 6 months. We plan to marry next month, and before anyone judges, please know that we are both in our early 40's and he has not been married previously. I have, but it was over twenty years ago. It took us loads of time to find each other, and are both extremely happy and surprised that we have. Unfortunately, we are finding the immigration laws of both of our countries to be quite socioeconomically disadvantageous, discouraging and emotionally/financially draining, among other things.

    Initially, we intended to utilize the VWP to bring him here for our wedding, after which he would return rather immediately (10 days later) and I would remain in the US whilst we would proceed with a UK Spousal visa application for me. We have checked and re-checked and understand that if we have no intent to settle here, that he can come to the US to marry me without a fiance visa (so long as he returns pretty immediately.) He has significant ties to the UK as he is a homeowner, a small business owner and has two young children with whom he is quite involved. Our incomes together barely meet UK sponsorship requirements, but we think we can prove enough at a push. The economy has affected his business greatly, although it's still afloat (barely), and I am on disability in addition to a flexible part time (online) tutoring and writing job that brings in a nominal income.

    We both have arrest records (mine from 20+ years ago and his from 6 years ago.) I received expungeable probation and he has received two cautions. I found out recently that my record was not expunged and I still show a felony arrest for marijuana.

    Wow, I guess we don't look so hot on paper :(.

    Anyway, we only just found out that USCIS requires disclosures of arrests - even without formal charges or conviction, thus making him ineligible for VWP. Of course, we would much rather follow the rules and make the proper disclosures and follow the proper procedures, but there are a number of issues/obstacles/fears that are turning us away from doing so. We can narry afford a lengthy, expensive, uncertain visa process just before our wedding and our impending expenses for my visa application to the UK.

    We have already ordered his criminal background check (ACRO) and literally have no idea what to expect from it. The two cautions he received were simple cautions, and we don't know how that will read on the report or what weight they will carry to USCIS/The US Embassy. One caution was for marijuana possession. It's my understanding that no weights are indicated on police cautions, and since there was a caution, it wouldn't generate an MCO(?) (which to my understanding is a police report of some kind) and the MCO is where any weights would be indicated. Thus we are unsure if he would qualify for the visa ineligibility waiver. (30 grams of marijuana or less)

    The second caution was issued after a person filed a false report against him and he was advised to just take the caution and be on his way. Some kids were breaking bottles and wreaking havoc behind his shop. He chased them away by threatening to call the police and the female in the group dropped her cell phone while fleeing. Rather than leaving it on the sidewalk, he picked it up for her. She came back and retrieved the phone - which he gave to her without hesitation, but the girl reported him to the police for "stealing her phone" and reported that he touched her inappropriately. He did no such thing. He says he still doesn't really know what it was all about, and was quite baffled by the whole scenario, but took the caution because he was told that cautions don't really count as a criminal offense and it was the quickest way to get rid of the whole matter. No good deed goes unpunished, I suppose.

    I read a few posts on "spent" cautions/convictions (I read the terms in a couple of places) but have no idea what they are or if they would apply to our situation, or even be relevant/irrelevant to the US when it comes time to issue visas.

    Both of his cautions were received in 2006.

    Now, our wedding is in less than 6 weeks. It is my impression from reading hundreds of forum posts in various forums that given the two cautions, and the content of them, (a drug caution and a possible theft + ?? caution) there is a strong chance that he would not be granted a tourist visa to come to the US for our wedding. It costs hundreds of dollars (that are coming directly out of our already very small wedding budget) to complete the necessary requirements for his application. There are application fees, CRB fees, medical exam fees (drug test fee, too?) postage fees for return of passports and, if issued, a visa fee as well. There is absolutely no guarantee of getting a tourist visa - and I'm given the distinct impression it depends on the whim of the consular officer at the time of the interview. It is also my impression that in some cases, decisions are final and are not eligible for appeal. We are also uncertain as to whether he would pass a drug screen as he occasionally uses marijuana. I do not.

    Additionally, the time frames indicated on the USCIS website for a wait for an appointment are cutting it extremely close to our wedding day. It is an average of 22 days to wait for an appointment, another xxx days, weeks or months to process the application. Also, in order to even ask any questions, much less make an appointment, you have to call a premium phone number and pay loads of money with no guarantee of getting through. Today, I called three times - each time I was put through a menu of choices, charged money and then disconnected after an outgoing message stating: "we are experiencing a very high call volume, please try your call again later."

    As I stated before, we have no intention of settling in the US, as I plan to join him in the UK. It is possible however, that 10 years or more down the road, after his children are grown, we may change our minds, but who is to say?

    The possibility of completing the process of getting him a visitor visa in a timely fashion (in time for our wedding) seems far-fetched at best and hopeless at worst. We both feel as if we are being repeatedly forced to pay for mistakes of long ago - and are being disproportionately penalized for our pasts - both financially and emotionally.

    Further, it is my impression that his issues could very well equate to an automatic and/or permanent bar from the US. If that is the case, what is the incentive to even attempt proper procedures? If he's likely be barred anyway, why not just attempt the VWP route and hope for the best? Even if we were found out, it seems that he'd be penalized no more severely than the repercussions we would suffer at the hands of a failed tourist visa application with no appeal recourse.

    What risks do we run if we intentionally bypass the visitor visa and pursue the VWP route?

    Please note that I am not looking for justification, support or any kind of permission to do this.

    I would just like to know, in no uncertain terms what the possible outcomes of attempting the VWP route would be for us - both positive and negative (best and worst case scenario) as well as short term and long term effects of our actions as it pertains to the US. Additionally, how would we benefit from going through the whole process if the outcome would be the same regardless, and we'd be out loads of money in the mean time?

    If we DO go through the proper processes and reveal cautions and what not, what is the approximate time frame we are looking at for completion (best and worst case) and is there any chance in he#@ that we'd accomplish all of this in enough time to get a reasonable airfare for him to the states?

    Any additional input you feel relevant or good to know would be greatly appreciated.

    Thank you for reading this thread, and I appreciate your time and patience in reviewing it.

    Regards!
  • 09-29-2012, 09:37 AM
    llworking
    Re: Marrying a Foreign National With a Criminal Arrest History
    Are you possibly making this more complicated than it is?

    Your criminal history has nothing to do with your fiance getting a tourist visa and coming over here and marrying you. Its a pretty simple process to get a tourist visa.

    You getting permission to reside in the UK because you are married to a UK citizen is what will be more complicated.
  • 09-29-2012, 12:24 PM
    Disagreeable
    Re: Marrying a Foreign National With a Criminal Arrest History
    As he has apparently not contested a charge involving moral turpitude, he may or may not be granted a visa. All he can do is apply.
  • 09-30-2012, 10:09 PM
    Alleycat13
    Re: Marrying a Foreign National With a Criminal Arrest History
    Hello,

    Even if I am making this more complicated, I am still under the impression that his criminal history will have an effect on his ability to come here. I've read horror stories of folks with simple cautions for the slightest weight of cannabis being denied a visa.

    Regardless, of whether or not I am making this more complicated, I still thought I asked some pretty direct questions.

    "Further, it is my impression that his issues could very well equate to an automatic and/or permanent bar from the US. If that is the case, what is the incentive to even attempt proper procedures? If he's likely be barred anyway, why not just attempt the VWP route and hope for the best? Even if we were found out, it seems that he'd be penalized no more severely than the repercussions we would suffer at the hands of a failed tourist visa application with no appeal recourse.

    What risks do we run if we intentionally bypass the visitor visa and pursue the VWP route?

    Please note that I am not looking for justification, support or any kind of permission to do this.

    I would just like to know, in no uncertain terms what the possible outcomes of attempting the VWP route would be for us - both positive and negative (best and worst case scenario) as well as short term and long term effects of our actions as it pertains to the US. Additionally, how would we benefit from going through the whole process if the outcome would be the same regardless, and we'd be out loads of money in the mean time?

    If we DO go through the proper processes and reveal cautions and what not, what is the approximate time frame we are looking at for completion (best and worst case) and is there any chance in he#@ that we'd accomplish all of this in enough time to get a reasonable airfare for him to the states?

    Any additional input you feel relevant or good to know would be greatly appreciated."


    Thanks.
  • 09-30-2012, 10:23 PM
    Disagreeable
    Re: Marrying a Foreign National With a Criminal Arrest History
    The VWP is not available to those not qualifying under the regular visa program, regardless of where they are from. The moral turpitude caution does not appear to be a problem, however the drug caution makes him ineligible for VWP or a visa.

    http://travel.state.gov/visa/frvi/in...1364.html#visa

    Quote:

    (A) Conviction of certain crimes.-

    (i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

    (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

    (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

    (ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

    (I) the 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 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

    (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that 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 6 months (regardless of the extent to which the sentence was ultimately executed).

    (B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

  • 09-30-2012, 10:36 PM
    Mr. Knowitall
    Re: Marrying a Foreign National With a Criminal Arrest History
    Why not "try" visa waiver if you're ineligible? Because you can potentially find yourself stuck at an airport in the U.S., being told, "No, we're not letting you into the country", and figuring out how to get back home and avoid possible detention pending removal proceedings.
  • 10-04-2012, 09:55 AM
    Alleycat13
    Re: Marrying a Foreign National With a Criminal Arrest History
    Quote:

    Quoting Mr. Knowitall
    View Post
    Because you can potentially find yourself stuck at an airport in the U.S., being told, "No, we're not letting you into the country", and figuring out how to get back home and avoid possible detention pending removal proceedings.

    I don't understand how this is possible if there is no criminal record. Why would someone be refused entry if there is no criminal history??

    We've ordered his APCO and if it comes back clear, we will do VWP.

    We are unclear whether his interactions with police were actually arrests that resulted in official police cautions or whether they were just "questioning" that resulted in some king of unofficial warning. He went voluntarily both times, was not booked in and was not given any kind of paperwork when he left. I asked him if they actually told him he was under arrest, if the took his photo and/or took his finger prints. The answers were no.

    To me, that means he was NOT arrested, and not given any kind of official caution, it means he voluntarily went for questioning. It doesn't make it any more of an arrest just because he might have feared the police or "felt" that it was not his choice that he go with them. It also doesn't turn a verbal warning/reprimand into a police caution.

    Some laypeople, who have never had interactions with the police so have no reason to understand the intricacies in the differences between arrest and voluntary questioning, may not understand that they don't have to go with the police when "asked" and also may not understand that they didn't actually "get in trouble" just because police asked them some questions and gave them some kind of verbal warning/reprimand.

    Ultimately, not everyone is completely schooled on these differences, and will perceive any kind of interaction with the police where they are "asked" to come to the police station and answer some questions as an arrest. On top of that, when police use ambiguous language when dealing with parties brought in for questioning (ie: "Now you be careful" "watch yourself" or "we're gonna let you go with a warning") then you run into people wondering exactly what the heck just happened and whether, "letting you go with a warning" means you were just arrested and cautioned, or were just questioned and let go. Especially absent any official "booking" procedures like fingerprinting, photos, etc.
  • 10-04-2012, 11:04 AM
    Disagreeable
    Re: Marrying a Foreign National With a Criminal Arrest History
    We are trying to deal with the info you gave us, not the facts as they appear in reality.

    That sounds like a logical course of action on his part.
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