Petty Theft Misdemeanor - Need advice for H1b extension

[madhkmr]

Hi,

I got a petty theft misdemeanor PC 488 citation last week and my court case is due next month. I have clean record so far and this is my first citation ( I was in a hurry for a doctor appointment of my 10 day old baby who was in car with wife and forgot to bill the goods i purchased, value 69$. I came out of the shop without billing and by the time i realized that i missed something they caught me. I was not arrested but given citation ticket ). I approached a defense lawyer and he gave me two options,

1.Go for dismissal under diversion scheme program
2. Or reduce PC 488 to PC 490.1 infraction.

I am not sure which option is safer, my H1 visa extension needs to be done in next 5 months. Please answer the below questions,

- Which option is better from immigration point of view? Dismissal under diversion or infraction? I also read about dismissal under pre-plea/pre-trial diversion program. please explain which is safe to continue my visa and employment in US.
- Which of the two options would go to my immigration record and how would it affect my H1B?
- What should i fill in background check criminal record questions for dismissal and infraction?
- Will this affect my H1B extension, H1 transfer to other employees, I-485 and citizenship? (my I-140 is approved already)
- What kind of paper work do i need form DA court for immigration purpose? Will they give case disposition documents?
- Do i need to go to immigration court once it is reduced to infraction or dismissed, when i apply for H1 extension?
- Will they take my fingerprints or how to avoid it?
- How expungement of dismissed case/infraction will happen?
- What to answer for below questions,
Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar action?
Have you ever, in or outside the United States:knowingly committed any crime of moral turpitude or a drug-related offense for which you have not been arrested?"

I do not have much knowledge in this regard. Please help me out in solving this. Thank You.

 

[Hexa]

H1-B extension uses form I-129, which doesn't ask whether or not you have been arrested or charged with a crime other than minor traffic offenses. That question is asked when you apply for a visa in your home country or for a green card.

Basically you're ok either way.
1. Ask your lawyer whether your state's diversion program requires you to plead 'guilty'. If it doesn't, then it's better to do the program and get a dismissal. Without a guilty plea and without a sentence imposed, you are not considered as convicted for immigration purpose. This is the best outcome.
2. An infraction is still a conviction for immigration purpose. Theft is CIMT (crime involving moral turpitude) which normally will bar you from admission (preventing you from getting either visa or GC), but since the maximum jail time that can be imposed for PC 490.1 is less than a year, you qualify for petty offense exception.

I would go for diversion if I were you. In either case you will have to include the original court disposition with your I-485.

For the question "Have you ever been arrested or convicted..." the answer is NO if you take the diversion program, and YES if you take the infraction.

For the question "Have you ever... knowingly committed any crime of moral turpitude..." the answer is YES. This is where the court disposition comes in as an explanation.

I would not expunge the case, because it's in your best interest to have a court disposition that says "dismissed". If you expunge it, you will get a letter from the court saying that no case is found, which might prompt an IO to dig deeper and give you more trouble.