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  1. #1
    Join Date
    Apr 2019
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    9

    Exclamation Will an Arrest Without Charges Affect Eligibility for a H1B Visa

    My friend is holding a j1-visa doing research at a university. He was arrested two years ago for domestic violence, a felony. But he was never charged, so there was absolutely no record at the court level, and there was not even a case. He got a certification of release and the arrest was reclassified into detention. As it takes three years for a felony to expire, technically speaking, this is still a suspending arrest. Although the prosecutor said they preferred not to sue him anyway. My friend is working on the petition of factual innocence.

    Question: As his J1-visa expires soon, his university is going to apply an H1-visa for him. Will this record of arrest affect his application of h1-visa or not, based on the current ICE policy?

    thanks so much in advance!

  2. #2
    Join Date
    Sep 2010
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    18,827

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    What makes you think felonies have an expiration date? You didn't indicate what state this was in, but unless expunged and even not then, that arrest record will be FOREVER. Prosecutors don't "sue" people. They either seek indictment on the felony or not.

    Your friend is in desperate need of talking to an immigration attorney.

  3. #3
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    Apr 2019
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    9

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    This is in California.
    I am sorry that my previous expression was not professional. when talking "expiration", I meant that if he will not be charged/sued for the next year, he can never be charged/sued for this. There is no case ,no charge, and, no conviction, so there is nothing to do with "expunge". My friend is working on the petition of factual innocence with his lawyer, which if he wins, the record of arrest will be sealed and then destroyed (at least, according to the law).
    He has an immigration attorney who is responsible for his green card. However, this immigration attorney does not handle the H1-b visa application, so this immigration attorney is not sure for this.

    Would anyone who has such experience give me some advice/informaition? Your generosity would definitely save him, an innocent person' life and career.

  4. #4
    Join Date
    Sep 2005
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    Default Re: Will an Arrest Without Charges Affect Eligibility for a H1B Visa

    Your post is not clear. You appear to be stating that your friend was arrested for domestic violence, but was placed into a deferral program instead of being criminally prosecuted. You are expressing certainty about certain aspects of the case, such as there being no court filing, but your other statements (such as your statement that the arrest was for a felony and your belief that felonies "expire") cast some doubt upon whether you know the full facts.

    Have your friend get an account and post here, so we can get more details.

  5. #5
    Join Date
    Apr 2019
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    9

    Default Re: Will an Arrest Without Charges Affect Eligibility for a H1B Visa

    Thank you Mr. Knowitall , sorry for the confusion, here are more details:
    1. On 08-01-2017, my friend was arrested; he was taken to jail, got finger-prints and et.al. He spent one day there.
    2. He went out of jail after paying the bond Co..
    3. On the bail Receipt it says: 273.5(A) PC …Court: xxxxx. Felony Arr. Court date: 08-07-2017 13:30…
    4. Then he hired a lawyer to handle this case. Several days later, the lawyer said, the case was not filed. So he did not have to show up in the court.
    5. Several months later, the lawyer got the certificate of release for him. The certificate says according to Penal code section 851.6 (a) it was a detention, not an arrest. (b) his charges were released on 8-4-2017;
    6. The prosecutor (or the supervisor of the police station or the detective; do not remember now), said that nobody will touch a finger on it, and said it is dying in their hands. (Heard from the lawyer).
    7. now My friend is working on the petition of factual innocence.
    did i make it clear now? ( this happened in CA, so if they want to sue my friend, they have to do this within 3 years after detention).

  6. #6
    Join Date
    Oct 2006
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    15,125

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    Quote Quoting flyingron
    View Post
    What makes you think felonies have an expiration date? You didn't indicate what state this was in, but unless expunged and even not then, that arrest record will be FOREVER. Prosecutors don't "sue" people. They either seek indictment on the felony or not.

    Your friend is in desperate need of talking to an immigration attorney.
    I have a real problem with an arrest record being "forever", if the DA declines to prosecute, which appears to be the case here. Police can and do sometimes arrest someone unfairly or without valid reason or even mistakenly.

  7. #7
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    Sep 2010
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    18,827

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    Quote Quoting llworking
    View Post
    I have a real problem with an arrest record being "forever", if the DA declines to prosecute, which appears to be the case here. Police can and do sometimes arrest someone unfairly or without valid reason or even mistakenly.
    Well you can have a problem with it, but that's the way it is. I can tell you in the two states I am aware of, this is true. You can get the records explicitly expunged if they didn't end up prosecuting, but it's not automatic.
    In this case, the charges weren't apparently unfounded or null proscquid, he just got a PTI of some sort.

  8. #8
    Join Date
    Apr 2019
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    9

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    With all these details, could Mr. Knowitall or somebody else give me some more advice/comments on this issue?

  9. #9
    Join Date
    Sep 2010
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    18,827

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    The answer is still the same as in the first response. Yes, it can be an issue. They need to be working with an attorney. DV crimes, even misdemeanors, are regarded as very serious these days and immigration law is in turmoil as it is.

  10. #10
    Join Date
    Apr 2019
    Posts
    9

    Default Re: Will an Arrest Record (Within Stuatus) Affect the Application of H1-Visa

    thanks very much for all of you!

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