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Results 1 to 9 of 9

Thread: DWI, Sentence Imposed Definition.

  1. #1
    Hell all,

    A bit of dilema here. I am on H1b visa. Green card application pending. Wating for visa numbers to become available. Anyways, my story is something like this.

    A DWI in Oct 2000 in Texas. The maximum sentence for a DWI is 6 monts jail time and or 18 monts probation along with 100 hours of community service and lots of fines.

    Well I got all except the jail time. So basically my sentence was 18 monts in jail with 96 hours of community service and fines. All of which I finished without any problems. So bascically my H1b visa requires yearlly renwals since my labor certificate has been pending for a long time. I never leave US to get a visa stamp, since I dont need to travel.. My h1v is extended in US. If I want to travel, I have to gou outside to get visa and I am afriad that they can take monts.

    Anyways, everything was going smoothlly ever year until last year. My H1b was approved, but it stated that I had to leave the country to get it extended and my extension of stay has been denied because I have criminal record which make me inadmissible.

    what happned to me after that was somehting of a near death experience. I saw my life just go down the drain and no will to live was a constant thaught in my head. Anyways, speaking to many immigration attorneys in Texas and else where in the country they all told me the same thing, well some different then others. In fact, the chat on ilw.com attorneys also told me the same thing.

    so from a dozen or so attorneys whom I spoke, 9 of them said that 1 DWI will not affect much of your immigration status since it is not considered to be CIMT, (crime of moral turpitude). Also because maximum sentence was 6 months in prison, regardless of the sentence given. Also, becuae probation is not considered as a sentence for immigration.

    these attorneys are high priced attorneys. But from the advice, they were all like using words like.. may or may notm depends and so forth...

    The others said that because you have probation of 18 monts, this may make it a felony.

    Then I read somewhere on the net from the Norton lawfirm website.. one should try to get sentence impsiton suspended and 364 days or less as condition of probation. I dont understand that statemtn. Is this for someone who has a max of 1 year in prison or for anyone.

    Anways, my companies attorney decided that we should file a MTR (Motion to re-open). Well someobody was watching over me, because with a 2 week period we got the approvals, along with a letter stating that USCIS made a mistake in not approving these cases before. So they realized that they messed up. Along with the MTR, I sent all my court documents, letter of completion of my probation and that ll fines were paid.

    So basically I am in the same boat again this year. They have not rejected my case yet, but I am very afraid. I am hoping that they will not reject it since they realized they made a mistake last year.\

    So I come accross this post from someone whose name I will not mention. Stating that porbation of more then 1 year will cause immigration aproblems for sure since hin Immigration attorneys have told him so. If this s the case then I am doomed. So I am nt sure whats going on.

    Some websites states that probation is not same as sentence imposed. Porbation is not considered as jail time. Probation is overlooked when they computer sentence for immigration purposes. Yet some say that it does.

    So can you someone please shed some light on this matter.

    Basically what does ths all mean when they say,

    One should try to get 364 days or less as a condition for probation.

    hope to hear from you all soon.

  2. #2
    Originally posted by whatever:
    Well I got all except the jail time. So basically my sentence was 18 monts in jail with 96 hours of community service and fines.
    that was a probation, correct?

  3. #3
    oops.. sorry yeah that was probation. Max jail time was 6 months for 1st offense. I did not get any jail time, but probations. So basically here are the words right out of my court documents.

    PROBATED Sentence.

    The Defendant guilty of the offense of Driving While Intoxicated as charged in the information and assessed his punishment at a fine of $2000.00 and 180 days of confinement in the county jail.

    Then it goes on to say something like this.


    It appearing to the Court,, however, that before this trial herein, Defendant applied to the court in writing for probation, which application included every verified averment required for such purpose by the Adult Probation Law of this State; and it further appearing to the Court that the needs of justice and the best interests of society and of the Defendant will be served by granting defendant probation in the cause;

    My probation cam with conditions, such as reporting the officer and drugs test once in a while.

  4. #4
    I received DUI in 2006 and did extensive research and consultation with lawyers. I hope it can be helpful to you. DUI is not a CIMT in most cases but you did not provide details about your DUI. Were you involved in any kind of accident like property damage, hit & run or hurt someone? If answer to this question is no then your DUI is not a felony. Probation does not affect your condition at all and it should have been over by now it DUI occurred in 2000. Did you disclose your arrest on the application for visa stamping? If you did not mention the arrest, you are inadmissible for giving false information to get immigration benefits. Were drugs involved in your DUI?

    I have read at least 50 cases with different scenario where people got their H1B stamping with H4 for their spouses and eventually green card and citizenship. One simple DUI will not make an alien ineligible for immigration. Your crime falls under petty offense exception so you should have been ok unless the officers at embassy were not sure about the conviction or some details in your case are missing here. You can read grounds of inadmissibility here.

    http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=baeb6d...c4f8629f8b6ea9f7c64d

  5. #5
    "Then I read somewhere on the net from the Norton lawfirm website.. one should try to get sentence impsiton suspended and 364 days or less as condition of probation. I dont understand that statemtn. Is this for someone who has a max of 1 year in prison or for anyone."

    Length of probation will not make a crime felony but nature of crime will. When I was reading anything available for DUI, I noticed that in many cases where maximum jail time was for more than a year. The lawyer did plea bargain with prosecutor to give 2 or 3 sentences (Imprisonment) for different crimes but 364 days for each crime to avoid immigration consequences.

  6. #6
    Than You so much for your response Lookingforhelp. I must clearify certain things though.

    There was no accidents, property damage or anything like that at all. It was simple DWI. Officer actually got me on speeding. He never wrote me a ticket for that. He smelled alcohol on me and therefore a DWI.

    Probation, fines, community service and all have been over some 4 years back. Last year when I applied for my extension, USCIS rejected my extension here in US and said that I have cirminal record which make me inadmissible. You can have your H1 extended here and if you want leave the country then you have to goto consulate. I have not done that. My extention to stay in us was denied here. I field a MTR, and they realized they made a mistake. So that denail was overturned and was given a approval.

    What concerns me is that someone here has posted that a probation of 365 days or more is considered as sentence imposed for immigration purpoces. if that is the case then I am in trouble.

    My mind is goig crazy. I guess I will find out soon enough, as my case for extension will be decided in a couple of months.

    so 18 monts was my probated sentce, since I did not want to goto jail for 6 months. That is ok then.

    I have been clean since then. I dont even drink man. Stupid company party and people whom I work with decided to fix my coke up.. But cant balme anyone but myself, since I knew something was wrong in my drink and I still drank it 4 times over.

    it was a horrible thing to do. Thank God no one was hurt. I dont think I could have forgiven myself if that would have happened. Forget what immigration consequences would have been.. So I got luck I guess.

    Ended up costing me at least 10,000 all together.. I say a pretty expensive joke..

  7. #7
    Thats what I am talking abou too. That stamenet is really confusing me.

    one should try to get sentence impsiton suspended and 364 days or less as condition of probation

    What does this mean.. Please explain in detail anyone.

  8. #8
    It happens many times that immigration officer at embassy do not know what is CIMT and what is not. I read somewhere on USCIS website in Immigration and Nationality Act or 8 CFR that simple DUI is not a CIMT. I will find that and give you a link here. Sometimes you have to take print out for the officer to make sure that it is not a CIMT or felony. You can read different cases involving DUI and immigration here.

    http://murthyforum.atinfopop.com/4/O...1&f=8064060382

    http://www.immigrationportal.com/forumdisplay.php?f=183

  9. #9
    Thats what I am talking abou too. That stamenet is really confusing me.

    one should try to get sentence impsiton suspended and 364 days or less as condition of probation

    What does this mean.. Please explain in detail anyone.
    You are misunderstanding here. The maximum imposed sentence (jail) should be less than a year and the actual sentence (imprisonment/jail) spent in jail should not be more than 6 months. I will post all links from government website with this information at a later time. Probation does not count towards incarceration. If you are on probation, your application will not be approved until the probation is over. Once the probation is over, that time is counted toward good moral character.

    Also you can search for cases on

    Goggle answers http://answers.google.com/answers/

    And

    Yahoo answers http://answers.yahoo.com/

    And

    http://community.lawyers.com/message...lId=18&mbId=20

    http://forum.freeadvice.com/forumdisplay.php?s=b21f2d64...0c50d72ef085c9ae&f=9

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