IMMIGRATION LAW MONTHLY

Immigration Law Monthly

March 2008

Written by Henry J. Chang

My sister filed an immigrant petition for my brother in 1995, under the family-based fourth preference. He has recently received a letter notifying him that his case is now ready for processing. United States Citizenship and Immigration Services is asking my sister to sign Form I-864 petitioner but she does not want to sign it. Instead, she wants me to submit Form I-864 instead of her. Can I send my own Form I-864 on behalf of my sister?

Only persons who are 18 years of age or older and who are domiciled in the United States (including its territories and possessions) may sign Form I-864. However, I will assume for the purpose of this question that you meet these requirements.

Since your sister is the original petitioner, she must submit a Form I-864 even if: (a) she does not meet the income/asset requirement, or (b) a co-sponsor such as yourself is willing and able to submit Form I-864. A co-sponsor may only submit a Form I-864 in addition to the petitioner's Form I-864 but not in lieu of his or her Form I-864.

I am an Australian citizen and am currently 28 years old. At the age of 20, I was found guilty (with no conviction) of using a credit card that I had found (theft and obtaining property by deception); I had to pay a fine and have had no further runs-in with the law. Will this effect my ability to obtain a visa? Does this mean that I should apply for a visa in Australia first? By the looks of it, I will not fall under the visa waiver scheme.

The visa waiver program ("VWP") is only available to citizens of eligible countries if they are not considered inadmissible. An alien seeking admission under the VWP may only be admitted if they can establish that they are clearly and beyond doubt entitled to admission (and are not inadmissible). If you require a waiver because of the offense(s), you need to apply for a visa in Australia before travelling.

The next question is whether you are inadmissible because of your criminal record. You mentioned that you were found guilty but with no conviction. You don't necessarily have to be convicted by the court to be inadmissible, since the definition of "conviction" for the purposes of immigration law is quite broad.

Under INA §101(a)(48)(A), the term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where:

A judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

The judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

So if there was a finding of guilt coupled by some punishment, penalty or restraint imposed as a result (i.e. community service, a fine, probation, etc.), this will be enough to make it a conviction.

It sounds like you were charged with two counts as a result of the incident. Theft and obtaining property by deception are both crimes involving moral turpitude; they are therefore both considered grounds of inadmissibility under INA §212(a)(2)(A)(i)(I).

If you had only one offense, I might consider the issue of whether you are eligible under the petty offense exception. However, as it appears as though you were convicted of two offenses, the petty offense exception is not available to you. As a result, you need to request a nonimmigrant waiver of inadmissibility in addition to a visa.

After my conditional discharge has been purged from my Canadian criminal record and subsequently removed from the active files of CPIC, would I still have problems entering the United States? I read somewhere that, although the record is gone within Canada, this by no means implies that foreign agencies such as US customs might have not saved it onto their own database before the purge. Is this a realistic possibility and, if so, would it be more advisable to get a waiver rather than to take the risk and attempt to enter the U.S.?

Your are asking whether United States Customs & Border Protection ("USCBP") would know about your conviction instead of the more important question of whether your purged conditional discharge will continue to be a ground of inadmissibility. USCBP does have access to Canadian Police Information Centre ("CPIC") records so they should be able to verify if someone who is applying for admission to the United States has been convicted of an offense in Canada. If they notice that an applicant for admission is inadmissible, they will definitely enter this information into their own computer system.

It is possible that they might never know about the offense if they don't access your records (they would only check during an application for admission to the U.S.) before your offense is pardoned and sealed. But this does not deal with the real issue of whether you are inadmissible; it only deals with the issue of whether they will know about it.

Whether or not USCBP ever learns of the offense, the fact remains that you have an offense. Although an absolute discharge is not considered a conviction under INA §101(a)(48)(A), a conditional discharge is considered a conviction. A Canadian pardon does not eliminate the offense; a pardoned offense can still be a ground of inadmissibility under U.S. immigration law.

So you really need to address the issue of whether the offense is a ground of inadmissibility under U.S. immigration law (not all offenses result in inadmissibility). If the offense is considered a ground of inadmissibility, you should seek a nonimmigrant waiver of inadmissibility.