As promised in my previous blog post, I wanted to offer a solution for some people accused of shoplifting or other similar crimes involving moral turpitude. If you haven’t seen that post, you can see it here.
So, if it is only your first time that you have been accused of this crime. Maybe you have been told that you are not considered “guilty” by the criminal court, but you have had to take some classes, etc. or pay some fine, or have some kind of a penalty for the crime, for immigration purposes, that is equivalent to guilt.
Luckily, it is pretty well-established in the law that 1 single offense of a crime involving moral turpitude that is a PETTY offense (the definition of this is very specific, so definitely contact a lawyer), can be considered as an exception to the ground of inadmissibility.
This means that if you only have one shoplifting charge for a small amount, and it is considered a petty offense, then an exception apply so you are not considered ineligible for benefits such as applying for a green card, naturalization, change of status, extension of status, any kind of visa, or during any entry to the US. Generally, it is my recommendation that clients contact an attorney to get a written memo attesting to how their offense qualifies for this petty offense exemption and why it would not render them inadmissible to the United States.
If you or anyone you know has been in this position, feel free to schedule a free consultation with us. Let us know your situation and we will be happy to evaluate if you will be helped by this memo.
1 Dec 2013 | 2 Comments | posted by dhenu | in Conditional Green Card, F1 Visa, H-1B, I-601 Waivers of Unlawful Presence / Extreme Hardship Waivers / Stateside Waivers, Immigration Application, Immigration Reform, N-400 Naturalization
The Holidays are coming. We can feel it everywhere. All the stores are stocking up, sales are buzzing everywhere, holiday lights and music fill the air. What does this all have to do with immigration? Well, I’ll get to that.
Shoplifting and that pesky petty theft (retail theft) presents a special problem for immigrants. Now, I am not suggesting that immigrants are more likely to be shoplifters because I have no idea about the data around that. But I do know a little bit about culture shock. One of the differences that was immediately noticeable upon coming to the US was the sheer size of some of the large department stores. Articles on display and within reach of the consumer. Of course, they are monitored by employees and security cameras, but they were much more easily handled by the average shopper than anywhere in India at that time, though this is changing and has changed to a degree with the recent infiltration of large malls in the major Indian cities. Regardless of how temptingly easy it may look to be able to slip a couple of expensive items in your purse or jacket, don’t do it. Aside from the moral reason, here are the reasons why.
First, if you have ever been in the unfortunate situation of learning firsthand about some of the criminal system in the US, put aside your knowledge for a while. Immigration law treats crimes differently. You see, immigration law is federal, while much of the criminal laws are state laws. So, unless you were charged with a federal crime, one of the issues presented is converting the criminal statute into immigration terms. While many states offer various degrees of guilt/innocence and various options for punishments, the first thing to know about crimes in immigration law, is you are either innocent or not innocent. There are no in-betweens. So, unless you are shown to be innocent, even if you were never convicted but you only admitted to having “done it” you can expect to be treated as if you were convicted. Yes, even a verbal admission is treated as proof of guilt.
Furthermore, there are different types of crimes–Regular crimes, Crimes Involving Moral Turpitude (CIMT) and Aggravated Felonies, for example. Shoplifting falls under the CIMT category. CIMTs are crimes that tend to have a component of lying, deceit, stealing, or fraud generally-speaking. (This is very simplistic, but I am trying to make this easily understandable.) No matter how small the crime or offense, if it involves a component of the above, it is a CIMT for immigration purposes. Two or more CIMTs make someone “inadmissible” to the United States. If you are on a visa and want to extend your stay, change your status, apply for a green card, apply for citizenship, or if you seek entry into the United States, you are seeking “admission,” and with two or more CIMTs, you won’t be permitted admission.
You are beginning to see the problem, right? I hope. Two or more admissions or convictions of shoplifting (retail theft or petty theft) can make you inadmissible. What if you only have one? Well, then, depending on the nature of the crime and the severity of the punishment, you may qualify for a petty crime exception, which would make it so the crime cannot be a cause of inadmissibility on its own.
In short, shoplifting, or another CIMT, regardless of how “minor” it is, can be a problem. If you have one, I hope you learn your lesson and never ever ever get another. Practically speaking, this means being extra-vigilant while shopping. Check your children before departing the stores, check your baskets and shopping carts carefully to make sure nothing got away, and resist that temptation at all costs.
What to do if you have recently been caught shoplifting or charged with a petty theft? I will write more in the next article…so stay tuned and stay safe and happy shopping!
Today, Monday September 9, 2013, is the final day of “Paryushan,” a Jain holy week, when we ask for forgiveness from family and friends. It seemed like a perfect opportunity for me to ask for forgiveness from my clients, prospective clients, and those who would have been my clients if I had reached you in time. Here it is:
I wish I were perfect and that I could help all of you attain your immigration goals. But I am merely human. I try my best, but even my best is not perfect. You do not often hear this from your attorney, but I want you to know that I know my own limitations and imperfections, and am humbled by them. At times I may have missed a call, I may have delayed responding to your email, or I may have made you wait for your appointment even if you arrived on time. On your consultation with me I may have been the bearer of bad news. I may have underestimated the complexity of your case and given you false hope. I may have lost your case despite my best efforts. I may have not communicated my boundaries and then have gotten upset with you for crossing them. I may have refused to take your case, or my fees might have prohibited you from seeking the kind of help you should take. I may have failed to fully emphasize how important it was for you to get legal assistance in your case. I may have missed helping you because my marketing never reached you in time. I may have been afraid to be direct with you when it was what you needed to hear. I may have gotten frustrated with you or another person and projected that frustration toward you. I may have gotten impatient with you for not turning in your documents on time without realizing or understanding your life’s circumstances. I may have failed to spend the time to listen to your whole story because it was not legally significant. Even if it wasn’t legally significant, I know that your problem was significant to you.
I need for you all to know that I value each and every one of you. I recognize that your stories, even if they are not always relevant to the case, are important for you. I understand how big of a step it must be for you to take your problems and present it to someone you hardly know–to divulge all of your information and hope that this person will be able to help you. I’m grateful to you for trusting me and my law office to be able to assist you in this. You all, with your complex lives, quirky personalities, and diverse problems, you teach me more than I could ever learn by myself. For this I am eternally grateful. I know I will continue to be better as a person and as an attorney, in no small part thanks to my clients and prospective clients who continue to challenge me and rejoice a victory with me. I am absolutely loving this journey because you keep me on my toes. I want to be sure that in my journey I never forget you, my dear clients and prospective clients, who have taught me so much along the way. Your cancelled appointments taught me I need to confirm appointment times and not keep appointments on Fridays, because who wants to see their lawyer just before a weekend? Your objections to price made me aware I needed to be better at communicating my value. Your panicked emails made me aware I need to be better at communicating my boundaries to you. Your complex life and immigration stories teach me perseverance. Most importantly, your trust in me and your gratitude inspire me to no bounds.
So, my friends, when I fail to respond to the email or phone call, just know that it isn’t that I do not care about you. And if you find it in your heart, please forgive me. I am trying my very best, but I will never pretend to be perfect.
Feel free to comment below if you so choose, and to forward this story on to others who may need to hear a humble apology from an immigration lawyer.
Dhenu Savla, Esq.
When an immigrant is married to a US Citizen, the person is sometimes eligible for a marriage-based adjustment of status (I485). However, many details need to be understood before you move forward with filing a case this complex without the proper guidance.
Are you qualified to adjust status?
- Sometimes people assume that just because their spouse is a citizen, they qualify to adjust status. This misconception could be very dangerous. First you need to make sure that you have an i-94, or a document indicating LAWFUL entry into the United States. If you jumped the border, you will generally not qualify to file for an adjustment of status. Some exceptions exist, but those exceptions relate to people who have had a prior application filed on their behalf, prior to April 30, 2001.
- Visa Waiver entrances can often qualify to adjust status, but it will depend on the jurisdiction.
Do you have an intent issue?
- Each and every immigration benefit for US immigration carries with it a very specific intent requirement. Did you enter on a student visa? Student visas carry a “non-immigrant intent” requirement. Non-immigrant intent means that you intend to return to your home country. If you enter as a student and immediately seek to adjust status to a green card holder, or a legal permanent resident, your intent requirement for the student visa is contradicted by your later action to apply for permanent residency in the United States. While you are permitted to have changed intent, you are not permitted to have fraudulent intent at the time of procuring any immigration benefit. Be careful because this is a landmine that can be very dangerous if not handled properly. If you have the slightest question, be safe and contact an attorney to screen you for intent violation issues.
It’s all about taxes
All immigration agencies care about how you are filing your taxes. This issue is discussed at length in this blog post here: The Important Role of Taxes in Immigration. Taxes are important. If you are unsure, do not go ahead and file. Have someone take a look at all your documents so that you can make modifications to your taxes if needed.
Your Relationship is Central
If it is a marriage-based adjustment, every relationship will be scrutinized, including every prior marriage, divorce, children, etc. If you have a “complex” relationship history or if you have certain ‘red flags’ about your present relationship, then your scrutiny may be heightened. For example, pay attention to whether you have a large age or experience gap from your spouse, whether you have language barriers, or cultural or religious differences that need to be explained. While differences are common, they could heighten relationship scrutiny.
Your prior immigration history will be examined
Keep in mind that immigration history does not disappear–it keeps on building. This means that if you or your spouse have had previous petitions filed, they could be re-examined. If you have obtained your citizenship based on a prior marriage and are now petitioning a new spouse, both of your marriages and all the petitions can be questioned.
Have you Misrepresented or committed fraud?
Misrepresentation can come up in a “simple” adjustment of status application based on violation of intent. However, if you have actually entered on a false visa, or passport, or have falsified information on any of your previous applications, you will likely need a misrepresentation or fraud waiver I-601. This is a serious matter, and not one you can afford to handle without a highly qualified attorney.
A good immigration attorney can help
Whether or not you have any of the above issues, but especially if you have them, you need a strong immigration attorney who will assist in PREVENTING the problems from occurring. One who will properly screen for these issues from the very beginning and attempt to cure whatever issues are possible before they become bigger.
Check our Client Reviews for reviews including adjustment of status case reviews.