Complicated situation with the wife!

[misbahaa]

Background:

My wife came to NYC when she was 8 (she's 25 now) on I BELIEVE (not sure) a B2 visitors visa. She stayed here after her visa expired, moved to Texas, graduated high school, and is currently a university student. In early 2008 she was charged with a second degree felony for possession of a controlled substance 4-100g. She plead deferred adjudication in May 2008 and has been placed on probation (not community supervision). Her lawyer at the time was unaware of her legal status, he was a pretty bad lawyer. She has no other priors on her criminal record. She has adhered strictly to her probation and earned her degree in the meantime. I met her summer of 08, and we married legally in front of a Justice of the Peace in December of 08. We were able to get married because an officer in the Harris Country Justice Department said she wasn't the kind of person who belonged there and looked the other way when it concerned her legal status and issued her a Texas/Harris Country Offender card which is a valid form of ID to be presented for a marriage license. She's eligible for early termination of her probation in May of 2010 since it's been 2 years. I want to get her citizenship. I believe the correct process is to apply for an I-130 with whatever accompanying forms are necessary. That will give her a permanent Visa I believe? And then apply for an adjustment in her status to a lawful permanent resident, which will make her a greencard holder I believe? I'm unsure as to how one gets from greencard holder to US citizen. I am a natural born US citizen btw.

Questions:

Now, after speaking with an immigration lawyer, they said that she'll need a criminal defense lawyer because her felony conviction (deferred adjudications in Texas are still looked upon as convictions, it's a wonderful scam) will cause problems. I looked into a non-disclosure but that won't prevent the USCIS from seeing her felony. So it seems the only option is a motion to vacate, based on prior misrepresentation and introduction of new evidence (the controlled substance was acquired through an illegal search - not on person but on belongings, which she failed to mention to her previous lawyer as well).

1) I just want to confirm, is this the only course of option, and if the case is reopened and vacated, it will NOT be an issue that shows up when I apply for her visa? The lawyer said that I can apply for her immigration normally if the motion to vacate is successful.

2) Also, if the motion to vacate is unsuccessful, what is the best course of action then? From what I've read, the USCIS looks into moral goodstanding for 5 years prior to the application date. If I wait for that window to pass (2013) will it have less of a negative impact on her application?

3) Another criminal lawyer said the safest bet (assuming motion to vacate is unsuccessful) is to wait for the 5 year window to pass AND to apply for non-disclosure because even though it will still be visible to the USCIS it will look even better (relatively) then having it just outside the 5 year window. Since she was charged with a felony, we would have to wait until 2015-2017 to apply for non-disclosure (5 years after the date of dismissal, depending on if early termination is awarded or not). Needless to say 8 years is a long time to wait.. she'll be 32 then and unable to work or progress in life. So my question is does a non-disclosure in place really make it look better?

3) What chance do I have of successfully applying if I just apply outright after her probation is terminated this may? Will it be automatically rejected since she has a felony within the past 5 years? Will I be inviting deportation hearings? I have no intention of having my wife deported. I just want to know what the best course of action is if the motion to vacate is unsuccessful.

4) And lastly, if the motion to vacate IS successful, what do I do then? She has overstayed her visa, but her entry was not "unlawful and without inspection". Will she have to go back to her country and do it the consular route? Will I have issues trying to apply for her visa if she's already in the country?

Thank you for your patience.

 

[Al Southner]

You indeed have a very complicated situation of which I think forum is a tad lower in resources to be of significant help to you and future bride. However, no challenge has been greater than the innovative spirit of immigrants, so I hope someone is capable to provide some concrete advise, even myself I will try.

1. Any convictions becomes USCIS business the moment they are disclosed on the application form for any immigration benefits. Seeking to open a case which ended in a plea won't dissuade USCIS from demanding documentation on the nature of law breaking.

2. If a motion fails, which I suspect is likely to do because it is TX, then I don't see many options. The moral turpitude questions and a 5 year window period are too different things, drug convictions tend to face closer scrutiny. In TX, I understand they can convict you for eating in public the balls of a bull without a permit... So, can you imagine they deciding to vacate a judge's decision or entered plea?

5. If motion is successful and you do file, she doesn't have to go anywhere, all that she needs to do is do AOS here in the good ol' US. All unlawful presence and illegal employment are forgiven just because you (USC) are involved in the process. This is a way for Uncle Sam to thank you for adding to the immigrant's community a new member...

 

[misbahaa]

Al, thanks so much for the prompt reply. A few follow ups:

1) You mentioned that "Any convictions becomes USCIS business the moment they are disclosed on the application form for any immigration benefits", I took a look at at I-485, which is the petition for AOS, and it does ask questions about past criminal behavior, but I found no such questions on form I-130 after taking a closer look. Would her felony be disclosed if I applied for at least just the I-130/visa just so she's here legally, and so she doesn't have to worry about deportation? Also I understand that the case would still be visible to USCIS even if the case is re-opened and charges dropped/dismissed, but at least if it was vacated, it could be explained away easily.

2) You're right. If you piss in a southern direction or chew too loud in Texas, ESPECIALLY Harris County, you're a felon. Harris County is STRICT and notorious for not showing leniency. I am VERY worried about what we'll do if her motion to vacate is denied. We'll have to just file and take our chances I suppose. Could you please explain what you meant by "the moral turpitude questions and 5 year window period are different things". They aren't clear to me, when does each apply to what situation?

3) After further research, I found out as well that because I am a USC any illegal employment (which she hasn't done) or overstay of her B2 Visa will be forgiven because I'm a USC. Her overstay isn't even her fault. She didn't even KNOW she was illegal until she wanted to get a drivers license at age 16, 8 years after she came to the US. Her parents (and I use the term loosely) THEN informed her and told her to "do something about it." Granted she couldn't until she was 18, but at that time she didn't know WHAT to do about it and assumed her parents would help her. They tried and I told them just to stop. A more direct route is for ME to do it since I'm a natural born citizen, her husband, and more.. acquainted with the ways of here hah.

I intend to get a lawyer for this, but it's hard to find a firm that has a good criminal defense lawyer AND a good immigration lawyer both in house. Even her criminal case involves immigration issues, because had the court known of her legal status back then she probably would've been deported at the time. Need to get it vacated without disclosing her legal status somehow. Hopefully I can get the best of both from two different places and have them work together, but most lawyers like to refer and not work with people they don't know. Also Houston is FULL of cash cow lawyers and lawyers seeking the quickest end to a case, not necessarily the best end result for their client. I'm not about to shell out 10G's over the course of years to have some JD tell me "sorry, can't be done" at the end of it all! It's hard to weed through the bad ones. This felony has really complicated things, but she doesn't have the character of a felon. Bad place/bad time really. It kind of angers me actually that DUI felons or even misdemeanors are allowed to get lawful permanent residence status but a second or even third degree felon for possession can't. DUI seems like more of a "public" crime to me that puts society at risk than the indirect crimes of a personal abuser. But that's just my 2 cents, wont really change the situation! Where can I find lawyer referrals/reviews/recommendations?

EDIT: Her parent's aren't very forthcoming with information. I don't know WHAT they're legal status is. Additionally, they've done a half-*** job with her paperwork in the past but I don't know WHAT they have and haven't applied for. Somehow she has an ITIN as a dependent of her mother and father (individual tax payer identification number) which means at some point she WAS a legal and her parents were either citizens, held resident alien/greencard status, or non-resident/alien visa holder status. So confusing.

 

[TheRealCanadian]

Would her felony be disclosed if I applied for at least just the I-130/visa just so she's here legally, and so she doesn't have to worry about deportation?

The I-130 alone does not allow her to stay legally. Only the I-485 does that.

I'd focus on getting the conviction vacated.

 

[thomas_psu]

This is sort of irrelevant at this point before the vacation of the conviction: does your spouse have documentation of legal entry/old passports, etc.?

 

[Jackolantern]

So it seems the only option is a motion to vacate, based on prior misrepresentation and introduction of new evidence (the controlled substance was acquired through an illegal search - not on person but on belongings, which she failed to mention to her previous lawyer as well).

Also try to get it vacated based on the fact that neither the lawyer nor the judge informed her of the immigration consequences before entering her plea.

I'm unsure as to how one gets from greencard holder to US citizen. I am a natural born US citizen btw.

It's too early to think about her citizenship now. Citizenship is a long way off -- after becoming a permanent resident, there is a three to five-year waiting period* after green card card approval to become eligible for citizenship, and she isn't even a green card holder yet.


*unless eligible for expedited citizenship, such as by active duty in the US military

 

[misbahaa]

This is sort of irrelevant at this point before the vacation of the conviction: does your spouse have documentation of legal entry/old passports, etc.?

She has her original (expired) and up-to-date passports from her country of origin, and her original B2 Visa stamp/papers that she her parents got for her to bring her here when she was a child.

Yeah look like I'll just have to hope that the motion to vacate is successful, or that the charge can be reduced at least if not dismissed. Texas courts aren't particularly merciful.. Thanks for the information/help guys.