Immigration Corner | What are my chances of getting a waiver?

Dear Mrs Walker-Huntington,

In 1999 at age 23, I was working as a helper on a visitor's visa in New York. I stole some worn clothes valued at about US$1,000 and was charged with a felony. When I got bail, I came home to Jamaica out of fear of the unknown.

I'm now 44 years old and married to a United States (US) citizen since 2010. We started the process, with a lawyer, of filing for me to migrate to the US. My application was approved and my documents came to Jamaica for processing. However, the relationship with the lawyer broke down. I was contacted by National Visa Center (NVC) for three years to continue with the process. I had to let it pass since I had no guidance.

What do you think my chances are of getting a waiver? Is this a permanent bar from the USA?

Thanks for your advice.

RAR

Dear RAR,

Each state in the US has different criminal laws and they individually determine the threshold for a theft crime to be deemed a felony as opposed to a misdemeanour. When a person is arrested and charged with a crime, they are granted bail with the assurance that they will return for future court appearances and to see their case through to resolution. When you fail to appear at a subsequent hearing, your bail is revoked, and a warrant is issued for your arrest. If you are apprehended, you most likely would not be granted another bail/bond and would be required to remain in jail until your case is resolved – even if ultimately your case is resolved without a jail/prison sentence. The failure to appear would deem you a flight risk.

In your particular situation you not only failed to appear, but you fled the country. Notwithstanding that it has been 20 years since your case, it should still be open in the county where the case was pending unless the court/clerk made an administrative decision.

Your marriage to a US citizen obviously makes you eligible to migrate to the United States but, you have a criminal issue – whether resolved or still pending – that would make you inadmissible to the United States (unless the case was dismissed). The first step in your trying to return to the United States is to hire an attorney to investigate the status of your criminal case.

The fact that you previously had an attorney with whom you had a parting of the ways should not have prevented you from seeing your spouse’s petition through to its conclusion. Also, that the NVC kept contacting you would indicate that your case was still pending. Without all the information surrounding both your criminal and immigration cases, I would recommend you seek the services of an attorney to determine the status of both your criminal and immigration cases.

If your criminal case is unresolved, your attorney could contact the prosecutor to resolve the case in your absence – it might mean having the warrant quashed, requesting the case be reduced to a misdemeanour, negotiating a plea to a lesser charge or to dismissing the matter. In certain cases, a defence attorney can appear on behalf of their client without the client’s physical presence.

To continue with your spouse’s petition, you will be required to demonstrate – among other requirements that your marriage from 2010 is still viable.

Dahlia A. Walker-Huntington, Esq. is a Jamaican-American attorney who practises immigration law in the United States; and family, criminal and international law in Florida. She is a mediator and special magistrate in Broward County, Florida. info@walkerhuntington.com