Criminal Record
Posted Sat, 02/04/2012 - 07:30 by loveisallyouneed
Hello
I am currently studying at University in Edinburgh, Scotland under a Tier 4 student visa. I have been here for 3 years and have a serious boyfriend. I only have one year left of study on my visa so we have begun thinking of the future. We would very much like to get married and have him come and live in the United States. I have spent countless hours looking up procedures and times and how it all works. I understand the process but i'm hoping to get specific advice about his case in particular. Five years ago at a music festival my boyfriend was charged with possession on a class a drug when he was 16. His name was taken down by police officers and then they sent him on his was. He received a notice to go to court shortly there after. He was given a 150 pound fine, no community service, no jail time what so ever. Since this occurred five years ago it is still on his record but in the UK he does not have to disclose it to anyone. I understand that US immigration doesn't abide by the same rules so when the time came he would have to disclose his conviction. Every other required document would be easy for us to provide, proof of relationship, finances, etc. however I am worried that this conviction may hinder our chances of being able to be together. I know the US is strict but I have heard that it is helpful if time has passed since the crime was committed, and the person who committed the crime did so when they were young. So I am hoping those are factors in his favor. Also he has not used drugs in the time between his charge and now. Could you please tell me if it would even be at all possible for us to obtain a fiance visa given the circumstances?
Comments
Inadmissibility for Past Drug Crimes
Hi and thank you for posting this question. First of all, I don't give case specific advise in this forum. I give a lot of general input about issues of law but in situations like this where the outcome is very fact driving I do not like to give concrete answers. That being said, generally speaking, a previous conviction related to drug use or possession can render an applicant for a K1 visa inadmissible under criminal grounds or health related grounds. However, the Department of State guidelines provide that a person who has been convicted of an offense of simple possession or use of a controlled substance shall not be found inadmissible if the applicant was under the age of 18 at the time of the offense. The legal basis for this "exception" can be found in the Foreign Affairs Manual at 9 FAM 40.21(b) N.2.1 and it also seems to be supported by some case law. Thus, if a person's only criminal offense was as simple possession or consumption charge that occurred prior to his or her 18th birthday he or she would not likely be found inadmissible on this grounds alone.
However, as I mentioned above, these case are very fact specific and whether or not this rule would apply in your case would likely depend largely on the exact nature of the charges against him. If it was a simple possession offense as you say it will unlikely be an issue. However, to be sure of this you would have to obtain the official records and have it reviewed by an attorney.
If you decide you'd like to apply for a fiance visa for your boyfriend I would be happy to evaluate your case. If you would like me to do this please fill out my case evaluation form.