What to Do After Denial of an Immigrant Visa Due to Moral Turpitude

[uh60chief]

Hello everyone.

First off, thank you to anyone who reads this and gives advice. I have been on the Visa Journey for almost 2 years now and still really have no idea what to do. I have been researching and asking questions nearly every day since my wife and I started this whole process. I still feel as lost as I did the day we started. I will try to be as brief as possible.......

My situation: active duty military stationed in Germany. My wife is a local national. We initally filed the I-130 in February 2013 and the petition was approved in May. We went in for the Visa interview in September of 2013 and were informed that the visa was refused(denied) on the grounds of crimes reflecting moral turpitude under section 212(a)(2)(A)(i)(I). It stated that we are eligible for a waiver by filing an I-601. At this point, I decided it was time to get a lawyer.

The lawyer reviewed our situation in Septmber 2013 and said there was no way to prove "extreme hardship" and 15 years had not passed since the crime. To give a background of the criminal charges....at the age of 16(year 1999) my wife had 2 convictions involving the defacement of public property(vandalism). The real kicker is that her mother was the one who actually did the vandalization and brought my wife with her. Guilty by association I guess. She was only given community service as a punishment and has not had a single incident since then(she is now 31 years old). Next month will mark 15 years since the incident so we are now exploring the option of the I-601. The past year I have also incurred a major back injury in the line of duty which has left me 80% disabled. My wife helps me with basic daily tasks due to the immobility of my legs and right arm. Germany does not have any VA facilities so I would have to be in the US to be treated for my condition. So, the extreme hardship may work in our favor now as well. My wife is very involved in both the US Military community here in Germany and she helps out at animal shelters on the German side. We have 5 character letters from people that have known her for over 10 years and also letters of recommendation from high ranking officials in the US Army. She was evaluated by a prominent Psychologist to determine she is of no harm or threat to anyone and that these acts were just adolescent stupidity that was encouraged by her mother.

So now that I have blabbed long enough about our situation, here are my questions. The lawyer had advised us to wait until the 15 year mark(next month) and file a completely new application for the I-130 and green card. What I am wondering is why would we file a totally new application when we know it will get denied at the Visa interview and have to go the I-601 route anyways? From my understanding, the Consulate does not care if it has been 15 years, the I-601 approving authority is the only one that takes this into consideration. Is there some kind of affadavit the lawyer can submit with our application that can obtain a waiver with the Immigrant Visa? I am confused as to how this lawyer can make a difference. I have called the Conulate in Frankfurt and they said I can still file the I-601 under the refused Visa from last year. It seems like filing under the already refused visa would save a lot of processing time since we would have to go through the whole process again if we follow the advice of the lawyer.

I apologize for writing a novel for you guys, I am just very lost and trying to find answers. Nobody in the USCIS has been helpful when I ask questions. They just refer me to a seperate organization that supposedly handles all Visa questions and Issues. They have not responded to a single one of my emails and never answer their phone. If anyone has advice on what to do, you would have my utmost gratitude and appreciation.

[Mr. Knowitall]

The real kicker is that her mother was the one who actually did the vandalization and brought my wife with her. Guilty by association I guess.

My initial thought was that your wife could try to have the conviction set aside based upon whatever evidence she has that she was not the offender, but....

She was evaluated by a prominent Psychologist to determine she is of no harm or threat to anyone and that these acts were just adolescent stupidity that was encouraged by her mother.

You're now stating that she did commit the acts but was encouraged by her mother. That's a very different story than the first one you told, a few short paragraphs before.

The lawyer had advised us to wait until the 15 year mark(next month) and file a completely new application for the I-130 and green card. What I am wondering is why would we file a totally new application when we know it will get denied at the Visa interview and have to go the I-601 route anyways?

Read the instructions for form I-601 -- "Who May File This Form". The petitioner needs to be applying for an immigrant visa or adjustment of status for the I-601 to be reviewed.

Filing a new I-130 is easier than appealing, and saves you the trouble of trying to prove that the USCIS made a mistake in its prior denial. Also, the cost of filing an I-290b is $630, while the fee for filing an I-130 is $420.

Is there some kind of affadavit the lawyer can submit with our application that can obtain a waiver with the Immigrant Visa?

You mean, is there an affidavit a lawyer can submit so that you can bypass having to file the required forms? I'm not sure what you have in mind here.

I am confused as to how this lawyer can make a difference.

You will ultimately need to decide for yourself if your wife will benefit from legal representation, or if she wishes to proceed without representation.

[uh60chief]

My initial thought was that your wife could try to have the conviction set aside based upon whatever evidence she has that she was not the offender, but....

You're now stating that she did commit the acts but was encouraged by her mother. That's a very different story than the first one you told, a few short paragraphs before.

Read the instructions for form I-601 -- "Who May File This Form". The petitioner needs to be applying for an immigrant visa or adjustment of status for the I-601 to be reviewed.

Filing a new I-130 is easier than appealing, and saves you the trouble of trying to prove that the USCIS made a mistake in its prior denial. Also, the cost of filing an I-290b is $630, while the fee for filing an I-130 is $420.

You mean, is there an affidavit a lawyer can submit so that you can bypass having to file the required forms? I'm not sure what you have in mind here.

You will ultimately need to decide for yourself if your wife will benefit from legal representation, or if she wishes to proceed without representation.

Mr.Knowitall,


What I meant by stating "The real kicker is that her mother was the one who actually did the vandalization and brought my wife with her. Guilty by association I guess." is that according to her account she did not commit the acts. However, the German court charged both her and the mother with vandalism. This is not something that we could prove in court. Her mother, in all her wisdom, decided to represent herself and my wife in court. She had absolutely zero education in Law so my wife had no defense whatsoever. The lawyer we spoke with said that if they had been represented by a decent lawyer, my wife would have seen no charges. That is a "coulda, shoulda, woulda" scenerio that has no bearing on our situation and I probably should have left those 2 sentences out of my original post.


Regarding the new I-130 versus the I-601, I guess I was not clear in my original post. We were approved on the previous I-130 and denied at the Visa Interview. The Consular informed us that we could now file an I-601 to obtain a waiver of the crimes that made her inadmissable. I called the Consulate this week and they said the option to file an I-601 is still available until October. I am confused as to why my lawyer would want me to file for a new Visa when we already know my wife is inadmissable and will require an I-601 waiver once she is denied again at the interview. Is it possible to submit evidence to the Consulate to prove she has made a compelte turn around over the last 15 years or is this purely the job of the waiver approving authority to determine admissability in lieu of her convictions? I have no real knowledge of Immigration Law or this process so I am more or less trying to find out how this all works.


The only reason I mentioned an affidavit is because my lawyer said he would draw up some paperwork to include with our next application at the Consulate. He did not say what it would be or how it would help, that is why I was wondering if there was such a thing. My thought process---we would file paperwork with the next I-130 that says "we know my wife is inadmissable and we know why, we would like to seek a waiver before getting to the visa interview process".


I have no real clue as to what to do. I am seeking any help or advice. I am not here to try to be the exception to the rules, I just purely want to know how I can get my wife approved to come back to the States with me.

[Disagreeable]

File your I=601 now on the basis of 212 (a) 2 A(ii)I.

(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,

the denial was based on 2 A(i)I.

http://www.uscis.gov/iframe/ilink/do...-0-0-2006.html

[T53147]

There are two resources you need to know about:

USCIS military helpline

immigration forum with link to attorney specializing in 601, 212 cases immigrate2us.net - look for the attorney they refer people to

[flyingron]

The under 18 exemption only applies to a SINGLE conviction. She has two. Note the words "the crime." There's amplifying text at the end of the section that says even if both convictions stemmed from the same event, the person is not eligible.

[uh60chief]

Flyingron, you are correct. The Consular made sure to explain that because there were multiple convictions, the exception clause was not allowed.

So in the last 12 hours I have contacted as many Attorney's as I could find that deal specifically with I-601's. I have found one that reviewed my case and has agreed to represent me. This Attorney thinks it will not be an issue to get an approval on the 601. She also thinks that my previous attorney is an idiot that led me down an absolute rabbit trail. I forwarded her all the emails he sent me and he was putting me on a pathway that would have resulted in me paying all the processing fees a second or 3rd time, and would end up filing the 601 anyways. Basically, he made me believe that he could file some sort of magical affidavit with my I-130 that would exclude the crimes my wife committed from the Visa decision making process. Absolute rubbish.

I will keep you guys posted with how it all goes with obtaining our 601. We will begin the process with our new Attorney tomorrow!