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Immigration Law Q&A with Attorney Kimberly J. Trupiano

QUESTION 1:

How likely will my case be dismissed or the charges dropped?

I am a permanent resident for 8 years (divorced with IR-1 status on green card) and want to marry a Peruvian citizen and bring her into USA to live with me. Is it best to change my status from permanent resident to US citizen to speed up this process? What is the waiting time (prox.) to get our I-130 approved with me being a permanent resident vs. me being a USA citizen? I am visiting her in December in Peru; would it be best to start the process at US Embassy or consulate in Lima while there? I could use some advice.

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

There are other questions I would want to ask you in a consultation so please realize that this is not advice. Some questions would include: Was your wife was ever in the United States before? If so when and how did she enter the United States each time? How long did she stay in the United States? Does she have any criminal history? (We ask everyone this!)

The advantage of applying for her as a United States citizen is that you can avoid having her wait in line. To see the expected wait time for her if you apply for her as a legal permanent resident, you should refer to the Visa Bulletin. If you applied for her as a legal permanent resident, it would fall under Second Preference – A (that is, F2A). As you can see, the visas that are currently ready to finish their consular processing for countries like Peru were first filed (priority date) on April 15, 2014. The line does not move month to month so you would have to look back to at some prior Visa Bulletins to see how fast this F2A line has been moving.

Once you marry her and she is your spouse, if you file a solid Alien Relative Petition as a legal permanent resident (that is, with lots of organized, relevant evidence of comingling of funds and other evidence that this is a real marriage – we would help you with this list of evidence if you hired my law firm), then later your I-130 could be converted to an immediate relative status (so she would not have to wait in line anymore). So that would help you get it up in line faster. You have to keep in mind that to obtain naturalization it can take around 6-8 months assuming there are no complexities. I would have to run some more questions by you before I could determine your eligibility since there are more factors of eligibility besides just being a legal permanent resident for over five (5) years.

Generally, if the naturalization application is done well, it takes around six (6) months for adjudication with USCIS. Then, the consular processing for a spouse visa takes around three (3) months after you have provided the support documents necessary. While your I-130 is being processed, we would be working with you on that list if you hired us. Please feel free to call us at 801-266-0166 for a free 20-minute free consultation to finish answering any questions you might have. Like I stated above, this is not advice and I would need to ask many more questions to establish your fiancé’s eligibility for the visa you want to seek for her and your eligibility for naturalization.

QUESTION 2:

Will a criminal deferral for shoplifting be a problem applying for a new B1/B2 visa?

I was caught shoplifting on August 2014, a terrible mistake. I had a public lawyer and went court at same day with Community Service and a deferral. The Judge told me that within 6 months my case would be dismissed and I could came back to USA. When filling a new DS-160 do I have to tell that I was arrested? Do I have to explain the case to immigration officer at USA Consulate? Thank you!

RESPONSE FROM ATTORNEY KIMBERLY J. TRUPIANO:

Even deferred State convictions are “convictions” under immigration law. So this could be an inadmissible offense. I don’t know if it is a misdemeanor or not. I would need to see the State record of conviction. What was the maximum amount of days in jail allowed for this conviction? How many did you get (even suspended)? What statute did the conviction fall under? Yes, you do have to disclose it.

Hopefully, it will fall under the petty crime exception under INA § 212(a)(2)(A)(ii)(II). That is, retail theft is usually considered a petty crime exception which would make you inadmissible for a non-immigrant visa. However, there is this exception – even if a conviction is a crime involving moral turpitude, a single, first-time conviction may qualify for the Petty Crime Exception, meaning that the offense does not trigger inadmissibility.

The exception provision reads in relevant part, that the ground of being inadmissible for having a conviction or having admitted to a crime involving moral turpitude (or attempt or conspiracy to commit) shall not apply to an alien who committed only one crime if— . . . (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). -INA § 212(a)(2)(A)(ii)(II). So I would need to know more about the conviction to see if it falls under that exception.

It is too bad that the State court judge gave you immigration law advice. Just because your case is “deferred,” like I said, it will very likely still be a conviction in the eyes of federal immigration law. Nevertheless, look to see if it falls under the petty crime exception to allow you to be admitted back to the United States.

Of course, your admissibility to the United States also depends on discretion so you should be sure to finish all conditions of your probation on that case and be ready to prove that when you apply for admission to the United States again.

This is not legal advice but general ideas that I have gleaned from your question and from my practice of the law. I would need to have a consultation with you to obtain more information to give you concrete legal advice. We offer a free intake process to gather preliminary information, pull the court docket if applicable, and then a 20-minute free consultation. Contact us if you want to arrange a consultation.