Would we get approved for a K1 Visa?

I live in Canada (citizen). My fiancé Chris is from Atlanta and we are planning to file for the K-1 Fiancé Visa. We were thinking of filing it on our own, but there is one problem: I was arrested in Los Angeles back in 2005 for grand theft (which I believe is a crime of moral turpitude). I pled guilty and was convicted. I didn't serve any jail time but my sentence was 200 hours of community service a fine. Also, because I had to go to court several times, I overstayed the 6-month visitor period (because I didn’t need a visa to enter the US) and when it was all done, I left on my own will (I was not deported). When I tried to go back to the states to visit, the customs agent at the border put me on a three year ban because I overstayed (not because of the arrest). The ban was lifted in 2009 and I have been to the US many times since then.

I was told by one attorney that I would need a waiver for this visa, but I wanted to get a second opinion. This was the first and only time I've ever been in trouble with the law, and when I was reading the Immigration & Naturalization Act, I read that there is an exception: (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).

I wasn't in prison, so would my case be an exception?

Thank you for your time.

I wanted Chris and I to go through an immigration attorney just to be on the safe side, in case there would be any issues. So my question is, is this something that you can do, and if so, how much would it cost? Thank you for your time



Phil's picture

Hi there, thank you for

Hi there, thank you for posting this and contacting me about your case. You've done a good job of researching this. The provision of the INA you are referring to is commonly referred to as the "petty offense" exception. It looks like your statement of the law is accurate. However, I can't say whether or not this is a CIMT without reviewing the statute under which you were convicted. This is because it is not just determined based on what you were actually sentenced to but also what you could have been sentenced to. If you could have been sentenced to more than 1 year than it would likely not fall within this exception and therefore would be considered a CIMT. I went to law school in California but I am not familiar with the CA criminal code; however, in most states grand theft is a felony which generally means the maximum sentence is more than 1 year. So, my guess is that you will need a waiver.

There are some types of immigration cases that people who are resourceful (as you seem to be) can successfully handle on their own. However, waiver cases can be challenging even for experienced immigration attorneys so I would discourage you from trying to go it alone.

I'd be happy to more thoroughly evaluate your case and provide you with a fee quote. If you would like to do that please start by completing my K1 case evaluation form and we'll take it from there.

Thank you. I just filled out

Thank you. I just filled out the form.

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