Hi

I am a bit confused about the wording and english is not my first language...

Regarding the sentencing clause below ("exceed imprisonment for one year"). If maxium penalty for my conviction is 1 year (365 days), is it applicable or is the sentencing clause only applicable if max penalty is 364 days?


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).

1; If the crime someone was convicted of could not, under any circumstances, result in a prison sentence for more than a year.
2; The actual sentence served was six months or less.


Example: You were caught stealing and served 3 months. If the maximum penalty possible is 2 years, you'd be screwed since the potential exists to serve more than a year.

I see..but to be sure I get it right:

I my situation max penalty is exactly 1 year, is it then ok? (or is exactly 1 year (365 days) included in the definition of "more than a year")

I have only been sentenced to 2 months, so that part shuold be ok

365 days is not more than one year; therefore, it is not included in that definition.

Good luck.

Thank you for the clarification

One final question from me on this exception clause: I cant find anything regarding required time spent from the crime to the visa application. Is there such a requirement or can the exception clause basically be used for a crime that happened yesterday?


Not sure if it matters, but the Visa I will go for is normal B1 or B2 (Non-immigrant)

If it's not in the regs pertaining to when an exception can be applied then it could very well have been moments before walking into the embassy.

You should probably talk to a reputable immigration attorney on this one, Andy.

My youngest son had gotten into a little bit of strife before we immigrated and so I looked in to this. It was my understanding that if the possible sentence was one year or more. So, to me, 365 days, being exactly one year, would count.

As far as length of time, obviously, the more recent the crime, the less you can show you've been rehabilitated. There's no hard and fast rules there though - people have been denied years and years after the facts, as a couple of folks around here can attest to. Others have gotten through more easily with worse (and more recent) convictions on record. A lot depends on the consulate/office and the officer overseeing your case.

Again, you should speak to an attorney. It's highly recommended for any case with extenuating circumstances, such as yours. We're mostly just armchair lawyers around here and while we mean well, our advice should never beat that of an actual professional.

offf....seems like this is a bit more tricky than I hoped

I read some AAO decisions, and it seems like its common in US law to use phrases like the below. Would such phrases mean that maxium penalty is 364 or 365 days??

A) "be punished by a fine not to exceed $1,000 or imprisonment not to exceed 12 months,"

B) "In all other cases, by imprisonment in a county jail not exceeding one year or in the state prison."

C)"Virginia Code classifies the penalty for violating a Class 1 misdemeanor as confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both."

Aroha: did you get this opinion from an attorney or the immigration government?

In my son's case, it was after we were approved by immigration. He went a little nuts partying like he'd never see his friends again. One of the kids broke a window and they were all charged with vandalism.

I did speak to a lawyer about it and was given the statutes in which to show it wasn't considered a CMT because he was under 18. We didn't get too deep in to sentencing etc since that was the case, and the maximum penalty was only 6 months imprisonment.

Again, you really should speak to an attorney.

Andy, you should see a lawyer and it appears your reading more into it than what's there.

When they say up to a year, that means up to but not more. Only when language given states the penalty exceeds what is meant to imply a year, such as 12 months, 365 days or one year, should it be of concern.

Look at the higher echelon crimes in the Virginia statutes. You will see there is a division that separates convictions which result in incarceration for a year or less and those that are defined as longer than a year

Language in the statue Im convicted under says "up to 1 year", which I my country means maxiumum 1 year (365 days)

But just to be sure: When US laws use phrases like "not to exceed 12 months", "not exceeding one year" and "not more than 12 months" etc. Is the maximum penalty 364 or 365 days?

(sorry for the questions, but english is not my first language...)

Not to exceed one year means it can be from one day up through and including a full year. Just so long as it's not a year + any amount of days, then you would be in trouble. 365 days,12 months, or one year would be the maximum.

If the language said it must be less than a year then you would be looking at 364 days, or 12 months minus one day, as the maximum since a full year would be more than 'less than a year'.

quote:

Not to exceed one year means it can be from one day up through and including a full year. Just so long as it's not a year + any amount of days, then you would be in trouble. 365 days,12 months, or one year would be the maximum.

This is how I interpret it as well.