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A 35 year old Japanese female in Japan seeks marriage with an American man in Hawaii(Navy-E6,33years old, from Florida. Live in Hawaii 13years). She has a criminal record (shoplifting about $250amount) from 1998 Aug. in Hawaii. That was first and last criminal charge. Her record was expunged. More distressing is that she has entered Hawaii every year under the waver program and stayed within 90days but never checked "have criminal record" on I-94 form. She got away with it but now wants to enter the U.S. for marriage to a U.S. citizen.

My understanding is that the material misrepresentation is a serious impediment. Does she have the slightest chance?

Answer by Margaret Wong:

If the crime falls within the petty offense exception, she would be admissible notwithstanding the conviction. Thus, it may be possible to argue not material. Clearly it is a misrepresentation. She may ultimately need a waiver for misrepresentation. Also may need 212(h) waiver to adjust status if the conviction does not fall within petty offense exception (punishable by 1 yr or less and sentence rec'd is 6 mos. O less)

Expungement makes no difference.

Answer by Dinesh Shenoy:

Having looked at the list of questions on the back of the top portion of the I-94W form she would have filled out on the plane before landing, I would agree that she should have answered yes to question b, specifically the portion of the question that asks "have you ever been arrested or convicted for an offense or crime involving moral turpitude . . ." her conviction sounds like (depending on the particular hawaii statute for theft of that amount) it would fit the petty offense exception to inadmissibility contained in INA 212(a)(2)(a)(ii)(ii). But that does not change the fact that the crime itself (while petty) is a cimt-- nearly all theft crimes are found to be cimts. I guess you could research the particular hawaii statute and see if it is one of the rare theft statutes so petty that it does not involve moral turpitude. That might be a meaningless exercise, though.

My attitude towards potential inadmissibility grounds is that CIS must raise the issue; We only have to answer questions on forms and if asked verbally, not volunteer potential grounds of inadmissibility if a form does not ask about it and an interviewing officer does not ask verbally during an interview. i.e., when filling out her 485, question 1.b about whether she's committed any crimes must be answered yes-- and then, certified copies of the arrest record, charges, and/or final disposition must be provided along with a copy of the relevant hawaii statute as it existed at the time of her conviction (presumably the same as present-day version, but maybe not). With luck, the crime fits the petty offense exception and so the 212(a)(2)(a)(i)(i) ground of inadmissibility does not apply.

But how to answer question 10? It does sound like she has gained admission to the united states through making a willful misrepresentation on her I-94W form. did she really understand the question being asked on the form each time she filled it out? I do not suggest playing games with cis-- but it is legacy ins' own fault for wording the I-94W to track the language of INA 212(a)(2)(a)(i)(i) exactly, by asking her if she's ever committed a "crime involving moral turpitude" instead of asking if she just committed a "crime." The average non-immigration lawyer probably has never heard of the legal concept of cimts-- if you asked me before i started doing immigration law what a cimt is, I would have probably thought only prostitution or adultery/fornication. If she really did not know she needed to check "yes" on her I-94W that she had been convicted of a cimt, then she arguably was not making a willful misrep at each time she entered visa waiver, such that on any i-485 she could answer "no" to question 10.

Of course, with her being overseas, and now knowing from you that she should be answering yes on the I-94W, I guess she cannot try and re-enter one last time visa waiver to adjust. (that has it's own separate fraud/misrep potential issue, anyway). If she's doing a k-3 visa in the future, and if based on the previous paragraph's discussion it's clear she did not willfully misrepresent herself on her visa waiver admissions, then i think when filling out a ds-156 for a K-3 visa, in question 38 she could answer yes to the first question (and prove how the petty offense exception applies to exempt her from inadmissibility under the cimt ground), and answer no to the second question (because it's the same question like on the 485 as to whether she ever willfully misrepresented herself, or only unknowingly represented herself because she truly did not realize what the I-94W form was asking when it referred to cimts and not just "crimes" in general. if she's doing an immigrant visa application, you'd have to check the questions on that form as well.

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