DUI

T

tnaspirant

Member
Hi,

I recently got DUI and the last day at job is in 2 weeks. I have secured another job in US. Would i be able to get the new TN1 pending DUI charges. I wanted to complete all the conditions of the DUI in case i have to leave the US. Also, can i apply by mail or I have to go in person?
 
Many years ago DUI was not considered that serious. But in the last 10 years or more, DUI has been considered much more serious.

From what I have read from other forums, being a foreign national in the USA charged with DUI is a very serious issue.
You need to speak to both with an immigration lawyer to understand the immigration consequences and a criminal lawyer to deal with the DUI charges. Each lawyer is an expert in their field and need to talk to each other.
Example, if you just talk to a criminal lawyer, he may recommend plea guilty to a lesser charge, but not understand the immigration consequences. Yes, it will be expensive talking to two lawyers, but it will be in your best interest to get the best advice if you want to stay in US and/or be able to return to US.
 
Besides the advice of hiring lawyers ASAP (as in yesterday) that was already given to you, I'd also say not to cross the border in the near future and at least until your DUI case is resolved and the court has made a decision and you have paid all the fines and dues and jail time if any. CBP has the right to reject entry once they see the pending DUI pop up on their computer screen. Or they may even jail you until your day in DUI court if crossing by land. I think they have that authority in land borders as you'll be on their soil and they don't want foreigners to get away with crime.

Depending on the nature of your DUI (if you caused casualty and/or property damage, or if it is a felony or a misdemeanor), it can be treated as a crime of moral turpitude and cause major delays and issues in any petitions filed with USCIS or at the border. That is exactly why you need both an immigration and a criminal lawyer or an immigration lawyer who also handles criminal offenses of foreigners in order to analyze your case and proceed the proper way. If this is the only criminal record you have, you can also be forgiven by USCIS or CBP, I think, under the petty offenses section in the immigration law.

Applying for your new TN at the border seems to be out of the question at this point, so you are left with applying by mail (I-129) and I am not sure if USCIS runs criminal checks for that. They do when you apply for other benefits like GC. Keep us posted here on this forum if you go down the I-129 path as there may be other members interested in the outcome.

After the dust settles in your DUI case, you will need to carry all court documents with you whenever you cross the border. There is a very good chance, you'll be taken to secondary inspection every time. So keep all the court documents, especially the disposition doc. And most importantly: don't break the law again!!
 
Another advice: depending on the state where this happened, after and if you qualify for expungement, apply for it. This will NOT wipe it off your records for immigration benefits but it will wipe it off your records when an employer runs a background check on you. That is another problem you will have to deal with as a consequence to your DUI.
 
Thanks for the replies. I am in CT and here under the AEP, the case is dismissed after fulfilling their conditions. Can i apply for second TN1 via I129? I thought only if you are outside canada, you can apply via mail..
 
1. You've got it the the other way around: a TN I-129 can only be filed when you are in the US. If you're outside the US, you can apply for TN only at a POE.
2. Even if they dismiss the case, it will NOT go away for immigration purposes. All arrest records will show on CBP's computer screen even if you were exonerated. And if CBP or USCIS ever ask you if you have ever been arrested before, the answer MUST be: yes! All criminal and arrest records must be disclosed if asked by CBP/CIS.
3. Also, dismissal is not the same as expungement. You will need it expunged for future employment.
 
1. Not technically true. I-129s can always be filed from anywhere. If approved, they would not however have an I-94 attached and would need to be finalized at the border. It is I-539s that need to be filed from within US.
 
Thanks for the correction. So it is pretty similar to an H-1B I129. Is its finalization at the border as easy as an H-1B's or does it get scrutinized by CBP since CBP has expertise in TN? My USCIS approved TN's never got scrutinized by CBP but I'm guessing that may not be the case for someone who is doing it from outside and has an approval notice without an I-94 in it.
 
Either TN or H1-B gets scrutinized for admissibility -- if issued without I-94. Otherwise CBP has nothing to do with it, other than general cause for suspicion.
So, as you said earlier, it would not be in our poster's best interest to leave US, so he needs to apply for TN with I-129 while still in status, and stay put in US
 
Thanks everyone for the clarification.

Nelsona,

If even after approval of I129 by mail, I have to go to the border, then whats the difference going directly to the border vs i129. How does it help applying through I129 if i become inadmissible when i go to the border. My understanding was that you can get it stamped within the US. I am still working and have valid I 94. Will I need another I94 in that case with the new TN1?
 
Reread what I said! You need to file I-129 while still in status. This will get you an new I-94 (yes, you need a new I-94) and avoid the need to go to the border.

Look. You've had it explained to you now three times, that you need to get this DUI resolved/expunged/dismissed before you leave US, or you may face inadmissibility in future. See some lawyers.

That's about all the effort I'm willing to spend regarding this thread.

Cheers?
 
Any criminal charge including a DUI is serious. And of course, you should count yourself fortunate that you didn't hurt or kill anyone while driving under the influence, if indeed that is the case.

Having said that, I think others are exaggerating a bit the US immigration consequences of a first time DUI where there are no aggravating circumstances like charges for hurting or killing someone or anything else to make it more serious. This is a rare example of an immigration situation where Canada can be a bit tougher than the US.

A first time DUI will not leave you inadmissible to the US, although multiple DUI's might. Nor will you be detained at the border unless there is a warrant out for your arrest. Your criminal defense attorney should be able to advise you whether there is or is likely to be an outstanding warrant. Most of the time if you take care of the DUI by attending all required court hearings (or having an attorney attend in your stead if your attorney advises you to proceed that way) and complying with all court orders, there will be no arrest warrant. There can be exceptions, though. Sometimes the DA isn't ready to file charges at the court hearing, so the matter is dropped for a time. Then later--still within the statute of limitations--the DA is ready and files the charges, and obtains a warrant to get you back into court. Your attorney should be able to advise if this is likely to be the case.

Even with a warrant, you would not be detained until your court date, but only until it is determined whether CT wants to extradite. As CT does not border Canada, it is unlikely they would extradite, but you might be detained under unpleasant circumstances until the determination on extradition can be made. Again--your criminal defense attorney can advise as to how serious a risk that is.

USCIS/CBP may or may not "recognize" the AEP. It depends on whether you ever admit to committing the crime. For example, if you sign something saying "I admit to driving drunk, but apply to have the charges dismissed due to completing an alcohol education program" then you've basically admitted to doing the crime, even if the charges are dismissed, and USCIS/CBP won't recognize the AEP. You should be talking both to a criminal defense attorney and an immigration attorney admitted to the bar (the legal kind--stay out of the other kind for now) in CT. However, even if USCIS/CBP still counts AEP as a conviction for federal immigration purposes, it isn't enough to make you inadmissible. And you should still complete AEP since it is better for employment background checks, and it still serves as documentation of the disposition of the case which you are likely to eventually need at some point.

The bottom line is that, yes, you should be talking to both a criminal and an immigration attorney. Driving drunk is serious because you could have hurt or killed someone, and you need to think very carefully about that. But I think you will find that the first time consequences for a DUI conviction are quite manageable from an immigration perspective. Make sure it never happens again, though--even not taking account the risk of hurting or killing someone next time, the consequences even at the state level rise exponentially for each subsequent conviction.
 
I speak for experience. I do have a dismissed and expunged charge from over 20 years ago and CBP took me to secondary inspection every freaking time even though I showed them the court documents over and over, and the alleged crime wasn't even 10% as serious as a DUI. This was the case until one nice CBP officer said he'd do something so they wouldn't take me to the 2ndary anymore as I had shown the court docs to CBP multiple times. He scanned in my docs and probably wrote a note in all caps that 2ndary wasn't needed for this record. They stopped taking me to 2ndary after that trip.

CBP has the right to detain you and/or keep you in 2ndary for hours regardless of admissibility. Now putting the OP at ease in this Trump era is not a wise thing to do. Trump detained GC holders without any criminal records just based on their place of birth in his first month of presidency. Do you really expect him to take it easy on someone on TN with a pending DUI case? OP must be super cautious until his/her DUI case reaches a closure. It is best advised to avoid border crossing until then. DUI is a very sensitive subject too considering that the Canadian gov't makes it super hard for Americans w/ DUI to come in to Canada. It is a tit for tat policy when it comes to politics.
 
I never claimed OP wouldn't have to go to secondary inspection. A few hours in secondary inspection is a minor inconvenience when the alternative is months of unemployment.

The fact of the matter is that there is no entirely safe course of action for our OP. OP will be unemployed in a week and needs to take some action or be unemployed. The I-129 as some have suggested may be the safest route if the employer is willing to go that route. There is no guarantee the employer will go that route. Some employers actually prefer the I-129 since it gives them more control over the process. Others want you to start yesterday and won't wait out the process of a mail in application. We don't have enough information to know OP's situation for sure.

I'm quite aware that I'm advising OP to take a less than ideal course of action. What I'm suggesting wouldn't be my first choice of action. The first choice isn't available, however, due to the combination of difficult circumstances OP is facing: job loss and a criminal charge. Under such circumstances OP may need to settle for a riskier plan, and minimize the risk by preparing a TN package that documents both eligibility for the TN and admissibility to the US. (The safest choice would be to neither change jobs nor travel until the DUI is fully dealt with. That option simply isn't available under the circumstances.)

Yes the denial of admission to GC holders in Trump's first month in office was a serious human rights violation. Even then, though, to the best of my knowledge they weren't detained for weeks or months as you seem to think OP might be. If one wants to minimize the risk of being detained, the best approach would be to fly into the US from a Canadian airport (not enter by land) and have the first US airport on the itinerary not be in the state where the DUI is (for example, if going to CT, maybe landing in EWR and taking ground transportation from there). I agree with I-129 as the best alternative but riskier options may need to be considered if the employer won't go that route.

The advice that others are offering also carries a significant risk: the I-129 could be denied, or the employer not want to go the I-129 route. It could well be impossible to complete the AEP program before one becomes unlawfully present in the US if OP can't get a new TN by mail. I'm not directly familiar with AEP, but I just looked it up, and it seems to involve a lot of steps--not sure if it could be completed in time. Again--we come to the conclusion that OP is in an unfortunate position where there are risks with any course of action--there is no risk-free choice. However, again, I do think I-129 offers the lowest risks if the employer will do it.

I actually have personal experience with all three woes being discussed here: the immigration effects of a relatively minor brush with the law, secondary inspections, and unemployment. For me personally unemployment was, by far, the greatest ordeal. The others weren't even close. I would take significant risk in other areas to avoid being unemployed.
 
Last edited:
CalGreenCard said:
I never claimed OP wouldn't have to go to secondary inspection. A few hours in secondary inspection is a minor inconvenience when the alternative is months of unemployment.

The fact of the matter is that there is no entirely safe course of action for our OP. OP will be unemployed in a week and needs to take some action or be unemployed. The I-129 as some have suggested may be the safest route if the employer is willing to go that route. There is no guarantee the employer will go that route. Some employers actually prefer the I-129 since it gives them more control over the process. Others want you to start yesterday and won't wait out the process of a mail in application. We don't have enough information to know OP's situation for sure.

I'm quite aware that I'm advising OP to take a less than ideal course of action. What I'm suggesting wouldn't be my first choice of action. The first choice isn't available, however, due to the combination of difficult circumstances OP is facing: job loss and a criminal charge. Under such circumstances OP may need to settle for a riskier plan, and minimize the risk by preparing a TN package that documents both eligibility for the TN and admissibility to the US. (The safest choice would be to neither change jobs nor travel until the DUI is fully dealt with. That option simply isn't available under the circumstances.)

Yes the denial of admission to GC holders in Trump's first month in office was a serious human rights violation. Even then, though, to the best of my knowledge they weren't detained for weeks or months as you seem to think OP might be. If one wants to minimize the risk of being detained, the best approach would be to fly into the US from a Canadian airport (not enter by land) and have the first US airport on the itinerary not be in the state where the DUI is (for example, if going to CT, maybe landing in EWR and taking ground transportation from there). I agree with I-129 as the best alternative but riskier options may need to be considered if the employer won't go that route.

The advice that others are offering also carries a significant risk: the I-129 could be denied, or the employer not want to go the I-129 route. It could well be impossible to complete the AEP program before one becomes unlawfully present in the US if OP can't get a new TN by mail. I'm not directly familiar with AEP, but I just looked it up, and it seems to involve a lot of steps--not sure if it could be completed in time. Again--we come to the conclusion that OP is in an unfortunate position where there are risks with any course of action--there is no risk-free choice. However, again, I do think I-129 offers the lowest risks if the employer will do it.

I actually have personal experience with all three woes being discussed here: the immigration effects of a relatively minor brush with the law, secondary inspections, and unemployment. For me personally unemployment was, by far, the greatest ordeal. The others weren't even close. I would take significant risk in other areas to avoid being unemployed.
Click to expand...
T
 
Thanks a lot CalGreen Card. I have talked to both immigration attorney and the DUI attorney and they both said once i complete the conditions for the AEP, the charge will be dismissed in a year ( not guilty) and i can say under oath that i was never arrested or convicted for DUI but for immigration purpose, I will need to declare but wont have major effect with only one DUI and no past history with the law and as you said no accident or injury in my case.
I need some help with the 129. Can you please advise about the following points -

I know that providing just the TN offer letter is much easier for the employer but when they have to fill these forms, they get scared considering it is a sponsorship application unless they have a legal department who are familiar with the TN1.

Thanks all for the information.
 
I got an offer letter today and I am in the confusion whether to go to border and take a chance or send I129 by mail which is less riskier. My question is that I 129 does not ask any information about pending charges or DUI and there are chances that I might get rejection or RFE via I129 but by going to the border I can provide answers for the questions. So I have 3 options -

1) Go in person to the border
2) Mail I 129 without disclosing about pending DUI as it is not required in the I129 with the risk of rejection/RFE
3) Mail I 129 and disclose about DUI and attach the court order about pending case ( pre trial diversion program without admitting guilty) and letter from attorney which says that after completing required classes, my case will be dismissed/expunged in one year. But this disclosure is not required.

My concern is that if I go to the border and get rejected, I still have pending US affairs to take of and to take my stuff. Would they normally allow on B2 under these circumstances?

Please advise from your experience what is the least riskier and higher probability option among the above mentioned.

Thanks.
 
You must log in or register to reply here.
Top