DWAI in CP

[imicma8596]

What is the bearing of a DWAI(Driving While Ability Impaired), an offence which holds a maximum sentence of 180 days, on a case in the stages of Consular Processing?

Should this be marked as a crime? And if in the previous H-1 INS applications it was unintentionally not stated, should the fact now be stated in CP application?

Any comments would be greatly appreciated.
Thanks

[abu lafya]

If yours is "Crime of Moral Turpitude" you will be rejected. Try looking for this term on the web and see if DWAI is categorized as one.
Also, consult a lawyer or even 2.

[kw177]

DWAI in CP

If you don't put it on the Visa Application it almost certainly will be found anyway during the background check - so you will need to list it.

You may be safer doing an Adjustment of Status. You can't take a lawyer to the Consulate with you but you can take one to the INS interview and let him/her do all the talking.

However do consult a lawyer whichever option you choose.

[imicma8596]

Thank you both for your response.

A couple of questions extending from your good advice -

Is switching from CP to AOS difficult to do at this stage?

Also, if a CP is rejected can one travel back to US on a valid H-1 and then file for AOS here?

Thanks in advance

[abu lafya]

No. If you get rejected because of "Crime of Moral.." you will not be able to get back.

Note that there is good chance DWAI is NOT "Crime of ...". Consult a lawyer. To switch to AOS you file I485 (I am not sure it is better for you). Note that rejection will happen for both if you are ineligible.

[kw177]

DWAI in CP

Not Legal Advice:

"in the previous H-1 INS applications it was unintentionally not stated"

There are two distinct things here that you need to be aware of.

1 - Elibility for a Visa.

There are certain criteria for eligibility which you must meet.

2 - Elibility for Admission.

Even if you are issued a Visa you have no guarantee of admission to the US. Your unitentional omission could get you into trouble later (even if you have the greencard) because a DWAI conviction may be grounds for deportation.

The reason you may want to do AOS is that it is Discretionary. If you are honest about the offence and omission the INS may excersise discretion in your favour (which means they wont try to deport you later). A Consular officer can't do that.

Either way you really must talk to a good attorney who has experience in these matters. My guess will be that he/she will almost certainly tell you to go for AOS since you will be in the US and able to have legal representation. You don't get that at the Consulate.

[abu lafya]

I agree with kw177 except for:

> The reason you may want to do AOS is that it is
> Discretionary. If you are honest about the offence and
> omission the INS may excersise discretion in your favour
> (which means they wont try to deport you later). A
> consular officer can't do that.

If DWAI makes you ineligible (which I doubt), don't do CP becuase you will be rejected. If you do AOS, you are also most likely to get rejected (this is were your lawyer comes into the picture).

If DWAI does not make you ineligible, AOS officer can reject your case anyway in the exercise of his discretion and CP officer must not.

[kw177]

DWAI in CP

Abu may well be right.

However if DWAI is a problem (and you will need to find this out for sure) there are other legal avenues you can pursue if in the US that you cannot do at the consulate.

However you should still see a good lawyer who has experience in this stuff. The best we can all do is give you hints. An experienced attorney can give you sound advice. I have only been through the process once. He/She will have guided people through more than I have and know more about the potential problems.

[imicma8596]

Thanks again for replying-
According to the recent definition available, DWAI does not qulify as a crime of Moral Tripitued; So I don't have to check one of those five categories listed at the end of the visa Application.

However, this is something that can be interpreted as one by the immigration officials, if they decide to. Since there are no strick guidelines or definition.

Is there a way to know in advance, how these misdemeanors are interpreted by Immigration. So I am prepared with all the documents to defend myself.

Thanks

[abu lafya]

First, I am not surprised.
If you can find court rulings that clearly say DWAI is not of moral turpitude, that will be it.

You will have to present court records.

Note that this provision of immigration law is intentional; it recognizes that people are not perfect while excluding the "wicked".