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H1b Visa Stamping with an ACD or Case Pending H Visa

Discussion in 'Investment, Work Visa' started by woow14610, Nov 22, 2008.

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  1. woow14610

    woow14610 Law Topic Starter New Member

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    Hi All,

    I would first thank the forum and everyone who is supporting the forum with so much appreciation.

    I have been in US 10 years and currently living in NY state. First I was in F1 and now second H1B and in the process of applying for GC. I have a clean record in every way.

    I was cited for petty larceny because of a stupid mistake from the store 3 weeks ago and I have contacted a criminal attorney. I was really sad and upset but I want to get this corrected. I have plans to travel for my brothers weeding this December and my court case is next week. He is planning to get an ACD(Adjournment contemplating dismissal) or if not move the court case until I come back in January.

    my question is, I am planning to get my H1B visa renewed in Decemeber when I go back home this December as it has expired. Is it safe to go for visa stamping and also in Port of Entry with a case pending? I would be taking a Court disposition with me in either case where it is ACD or Pending?

    Could someone please advise as I am really concerned and where I live in NY state has very less immigration attorneys. Again thank you so much in advance.

    Thank you
     
  2. woow14610

    woow14610 Law Topic Starter New Member

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    ACD or Disorderly Conduct?

    Hi All,

    My attorney is telling me that he could get me an ACD or DC which one is better for immigration purpose? I know both might have bad implications for immigration but given my record is clean and will be clean....which one would be better when I am planning to apply for my green card through H1B.

    Please let me know any input is greatly appreciated.

    regards
     
  3. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    You should speak to an immigration attorney and we are glad to provide you with an in state (New York) attorney if you need one. My thought is that it's important to do so because larceny is a crime involving moral turpitude, although I've heard there is a one time exception. This is a recent charge which makes things more challenging, especially if you need to leave and try to re-enter the country. Hopefully you can get this dismissed before you leave. What exactly was the charge?
     
  4. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    From looking at information here on the forums, apparently an ACD is the same thing as a conviction to the INS, prior to any dismissal. However there is also the discussion of the one time exception.

    From looking over the law, Section 212(a)(2) contains the “petty offense exception" where some crimes are excluded where the maximum penalty does not exceed imprisonment for one year and where the alien’s sentence did not exceed six months. Here is the relevant section:

    INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY

    Sec. 212. [8 U.S.C. 1182]

    (a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

    (1) Health-related grounds.-

    (A) In general.-Any alien-

    (i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance; 1b/


    (ii) 1/ except as provided in subparagraph (C) 1a/ who seeks admission as an immigrant, or who seeks adjustment of status to the status of an alien lawfully admitted for permanent residence, and who has failed to present documentation of having received vaccination against vaccine-preventable diseases, which shall include at least the following diseases: mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-pre ventable diseases recommended by the Advisory Committee for Immunization Practices,


    (iii) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services in consultation with the Attorney General)-

    (I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, or

    (II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

    (iv) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to be a drug abuser or addict, is inadmissible.

    (B) Waiver authorized.-For provision authorizing waiver of certain clauses of subparagraph (A), see subsection (g).

    (C) 1/ EXCEPTION FROM IMMUNIZATION REQUIREMENT FOR ADOPTED CHILDREN 10 YEARS OF AGE OR YOUNGER.--Clause (ii) of subparagraph (A) shall not apply to a child who--

    (i) is 10 years of age or younger,

    (ii) is described in section 101(b)(1)(F) , and

    (iii) is seeking an immigrant visa as an immediate relative under section 201(b) , if, prior to the admission of the child, an adoptive parent or prospective adoptive parent of the child, who has sponsored the child for admission as an immediate relative, has executed an affidavit stating that the parent is aware of the provisions of subparagraph (A)(ii) and will ensure that, within 30 days of the child's admission, or at the earliest time that is medically appropriate, the child will receive the vaccinations identified in such subparagraph.


    (2) Criminal and related grounds.-

    (A) Conviction of certain crimes.-

    (i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

    (I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

    (II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

    (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, or

    (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).

    (B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2/ were 5 years or more is inadmissible.


    (C) 2a/ CONTROLLED SUBSTANCE TRAFFICKERS- Any alien who the consular officer or the Attorney General knows or has reason to believe--

    (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or

    (ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissaible.


    (D) Prostitution and commercialized vice.-Any alien who-


    (i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status,

    (ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, admission, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10- year period) received, in whole or in part, the proceeds of prostitution, or

    (iii) is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution, is inadmissible.

    (E) Certain aliens involved in serious criminal activity who have asserted immunity from prosecution.-Any alien-

    (i) who has committed in the United States at any time a serious criminal offense (as defined in section 101(h) ),

    (ii) for whom immunity from criminal jurisdiction was exercised with respect to that offense,

    (iii) who as a consequence of the offense and exercise of immunity has departed from the United States, and

    (iv) who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense, is inadmissible.

    (F) Waiver authorized.-For provision authorizing waiver of certain subparagraphs of this paragraph, see subsection (h).
     

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