This past december/07 I made the critical error of forgetting a tiny quantity of marijuana in my purse when I was on my way to see my fiancee (less than 0.5gr) In which the killer part wasn't even mine!!! My fault! Anyway, they found it on my way to Detroit ( I was crossing in Port. Huron) and charged me with possession. My laywer got me a 74-11 in which the terms are : As long as I fufill my 24 months probation the 74-11 enititles me to my record not even existing (so therefore it won't even show that I was charged anywhere in the world).

My fiance and I went to Cancun in the month of February, flew out of Detroit (since the judged allowed me to go on my vacation) however, when we returned they wouldn't allow me to leave the airport, and escorted me back to Windsor telling me that I am inadmissable to the U.S. due to my guilty charge of the possession. I told them about the expungememt, but they said it doesn't matter that i'm going through a diversion program, once it's in their computers then I am no longer allowed to enter the U.S. without a waiver.

I have since then started the process to recieve a criminal waiver ( no other criminal history...other than this charge in the U.S. and no criminal history in Canada) I am currently waiting for my RCMP finger print criminal history to come back to send out the application to the U.S. customs and immigration.

My questions are:
1. Can we still apply for a K-1 visa without me recieving this waiver first?? or can we apply for the K-1??
2. Do I have to disclose this charge on my application??
3. Is there anything that I need to do if he wanted to spnsor me??

He is an incredible man. I realized that I made a bad decision..and now we're kinds stuck...if anyone can help me with these answers I would really appreciate it!!!

1) Nothing to stop you from petitioning (which is a required step before visa application) but the visa won't be issued without a waiver
2) If you read the petition it says under what circumstances you must declare....
3) There is no such thing as sponsoring by an individual USC per se.......

1 & 2) You can still apply for a K-1 visa, but I agree I think you need the waiver first. You need disclose this charge of possesion of marijauna. Even though you are on probation and it will be expunged from your record.
3) There is nothing you need to do other than be ready to get documents ready. Get your RCMP police clearances now.

Start looking into the waiver process, it is a very involved process. Start looking into the I-601 hardship waiver. Immigrate2us.net is the most organized place to start and k1 is probably the fastest way to go.

For an immigrant visa it is still possible (even for a k1) that you won't need one. Check out the INA exception for criminal waivers: This is from the INA 212 a (2)A(ii)

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(II) 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).

Does this apply to you?

Yes - apply for the K1 and definitely disclose this offense and its details. The only waiverable drug offense is a single possession of cannabis under 30 grams. Waivers are typically filed at the interview - you're just getting yours done ahead of time. Sounds like your waiver will be processed along with your K1 application so maybe you wont have to wait after the interview like everyone else does!

She falls into the 212(h) category:

212(h) waivers

If you have criminal convictions, it is more difficult to get legal status through a family member. You may be eligible to ask for a waiver (or pardon) for your crimes. There are several types of waivers, but the most common is a 212(h) waiver.

What is a 212(h) waiver?

It is a waiver that allows you to get legal status through a family member even though you have criminal convictions. It can waive the following crimes:

*Crimes of “moral turpitude” except murder or torture
*Multiple criminal convictions
*Prostitution
*only one offense (whether you admitted to the act or were actually convicted) of simple possession of 30 grams or less of marijuana (no other drug crimes can be waived)
*diplomats who claimed “immunity” to keep from being prosecuted

You must report any charges or convictions to the consulate when you request any type of visa.

I presume the 'criminal waiver' you speak of is a matter in the Canadian courts? I presume you are not referring to a waiver for crimes of moral turpitude in connection with an application for a US visa, as those waivers are not filed until the visa interview or shortly after. If so, this 'waiver' you speak of may 'expunge' your record in Canada, but it still must be reported to US officials when you request a visa.

Your best answers are going to be gathered when you meet with an attorney familiar with US immigration law. I would strongly advise you to do this and not to rely on the information previously given to you in this thread.

Your RCMP report is vital to you at this point - do not schedule an appointment with an attorney until you have received it and know exactly what it says. The fact that your 'crime' occurred while you were crossing international borders may make a difference in the charges on your record.

Good luck to you and let us know what you find out.

I don't know if it's Canada wide or just Saskatchewan (where I'm originally from), but as of 2006, any "diversion" programs will appear on your record, but the results are "diversion" under the conviction section.

Why would the criminal waiver come from Canada if she's trying to enter the USA? "I am currently waiting for my RCMP finger print criminal history to come back to send out the application to the U.S. customs and immigration." <<pretty sure this is the an I-601.

I have no idea why the 'waiver' the OP speaks of would be coming from Canada. I can only assume there is a disconnect here in knowledge of the way the process works or knowledge of terminology.

There can be no 601 waiver filing at this point because the OP has no qualifying relative to file the hardship letters.

Until the OP comes back and tells us more, I'm thinking she is either going through some sort of process in Canada which 'waives' or expunges the crime (terminology disconnect between what we know of US immigration and what we don't know about Canadian law) OR the OP is starting to gather evidence in anticipation of filing a waiver AFTER the K1 is approved.

A fiance IS a qualifying relative for the hardship waiver I-601. It is a frequent misconception that they are not.

I agree that an attorney IS a good idea, however, she should be well informed and doing her own research, so that she is informed enough to choose a qualified and experienced attorney. Arming someone with the text of the INA is never a bad idea, and neither is obtaining the advice of a qualified attorney.

Yes, a fiance is a qualifying relative. But that relationship isn't established until a petition is filed. Once the petition is filed and approved, the beneficiary can request an interview for a visa based upon that approved petition.

If that visa is denied, then a waiver of the denial can be filed. And not until.

The process in Canada is called a pardon. It does not sound like the OP is pursuing a pardon, rather is pursuing a US waiver. You can apply for a waiver even if you are only an intended visitor, however, as noted above, a waiver for possession of marijuana (less than 50 grams) is only available on a family petition.

Thanks Kathryn.

I'm assuming this 'waiver' for Canadian visitors (who don't need/use the VWP) is similar to a VWP citizen having to apply for a visitors visa when they have a conviction (ie inadmissable on the VWP)?

I knew a guy from the UK who had convictions (not drug related) and he applied for and was granted a visitors visa which he used a couple of times to visit his fiance in the US. They later filed the K1 and subsequent waivers, which were granted.

If I'm understanding you properly, we're in agreement that the 'waiver' for traveling doesn't supercede the waiver for potential immigrating.

Yes, it would be a different waiver for visiting than for potential immigrating. My experience with US waivers dates from when I worked in the Member of Parliament's office in our area. We were an hour from the border and often had truckers come in who needed to request US waivers to allow them to drive a truck across the border for their employer to make a delivery. We actually downloaded the forms for them from the US immigration site, but they had to fill them out and submit all of the documentation plus the fees to the appropriate US authority themselves. They were not happy campers since waivers at that time for taking almost a year for approval. Some of them literally lost their jobs because they couldn't cross the border. A lot of them had already gone through the process of applying for a Canadian pardon (which were taking about 18 weeks at that time) and were mad as hell that it didn't make a difference to the US authorities and they then had to turn around and apply for the US waivers. If they came to us first we generally told them not to bother with the pardons and just go straight for the waivers.

Thanks again, Kathryn.

When a person files a waiver for a tourist visa do they use the I-601? Or is there another? Also - if a waiver is filed for a tourist visa to enter the country do you know if that can be used in conjunction with the K1? Seems logical to use one waiver to get into the US regardless which route she takes.

Im wondering if it makes a difference that the crime was committed within the US instead on Canadian soil.

Any 'waiver' obtained prior to filing the K1 doesn't negate the need for filing the 601/212 after a denial for a fiance or spousal visa. The process was already explained above.

The crime was committed while crossing a border. Not 'within' the US.

I don't think we're doing the OP any good by further speculation. They need their RCMP report and a consult with an attorney.

My further speculation was out of curiosity. Is that OK??

If you had the personal knowledge of this process that you should have, your curiosity would be moot.

Why would I? You seem to have all the answers.

Because you inquired here:

http://www.visajourney.com/forums/index.ph...mp;#entry767499

He was not ineligible for the VWP as we once thought - which is why he used it to get over here. You sure like regurgitating people's information dont you?

If he was not ineligible, then it would possibly be helpful to others if you would explain why.

However, since I personally know three people who have had convictions in the UK on their record who were VWP ineligible, I think you are trying to spin a story to cover your rear end.

That would be because he had a clean national police record. He had a warning we thought would warrant the use of a waiver but it was not needed. I'd appreciate it rebecca if you would kindly get off my a$$ with your rude comments in text. Thanks.

Having a clean 'national' record doesn't have squat to do with whether or not a crime is an 'exception' under the Visa Waiver Program.

Neither does it have anything to do with adjusting status.

If you think you know something we don't, I'd appreciate you explaining how you came to that knowledge.

As a matter of fact, I'm completely done commenting on this subject. It's pointless anyway until you disclose the entirety of your situation and how things worked out for the two of you. If you don't wish to do that in public, that's your call. But it's rather unfair to other posters if there is a legal way 'around' a marijuana possession and use of the VWP; around filing a waiver for it; and around disclosure of that at adjustment of status without completely telling your story to us.

This isn't about 'enquiring minds' wanting to know. This is about a claim you are round-about making on these boards without going into detail. Without the detail, your claim is fruitless to others. I don't intend to make an idiot out of myself trying to get you to let us in on what happened.

I tried to help you last spring when your story came to light. You disappeared from the boards. None of us knew why.

I'm glad your family is reunited and happy. If you have something worthwhile to tell us, that would be helpful. If not - then I'm not sure what your purpose here is unless it is to give false hope to others.

Wow - my situation really ticks you off doesnt it? You seem to know more about it than even I do! Please tell me what "claim" im trying to make? I read a post - add my 2 cents like everyone else then I wait for you to chase me, chomping at my coat tail. I disappeared from this board because I sent in my petition then proceeded to be very sick and pregnant, move into a new house, struggle at work, and mother my two preteens. I wanted to just sell you the novel of my life so at least I could make some money on the proceeds but its not finished.

Look lady, you're under some impression that I have an underground railroad from the UK to the States and that we evaded the system with my Mission Impossible false documentation and face altering plastic surgery - but the facts are that we went into the process with all the same background checks as everyone else. Are you telling me that the FBI and CIA arent doing their job? That perhaps my husband used someone else's hand for his fingerprints?

Get real, you are anything BUT happy that my family is reunited. I've been through hell. The money spent for our K1 and our plans to wait it out were disrupted when our 4 week old baby ended up in emergency surgery - this is when we decided to adjust within the US. Did I preplan the 4 days in terror while he went through that ordeal? I cant understand your heated desire to "bust" me on immigration fraud when there's illegals who swam across the Rio Grande or fake marriages for the sole purpose of a GC.

I don't post things here that I don't mean. I said I am happy your family is reunited and I am.

Oh St. Rebecca - if everyone was as dilligent about helping others as you are, this world would be a better place. Thank you for your huge concern for me and my family.

Hello! My husband had to file a waiver because he had overstayed a past visa here in the States. First, we had to "prove" that our marriage was bona fide (for us it was the I-130 petition as we were filing for a CR1-IR1 visa). Once that petition got approved, we then gathered up all the materials for his immigrant visa interview. While gathering all those materials, we also prepared his waiver packet. We knew his visa would be denied (due to his past overstay) and he would be required to submit a waiver. On the day of his interview, he was denied a visa and told to file a waiver, which he handed to them that day. It took 15 months for the waiver to be approved... it is NOT an easy or fast process so be prepared to be patient! You cannot file a waiver until you have been denied a visa. But, you can get the waiver packet ready in advance so you can hand it in the day you get denied. Your waiver packet should include a hardship letter, written by the US citizen, explaining why it would be a hardship for the USC to either 1) remain in the US without you and 2) why it would be extremely difficult for the USC to relocate to your country. Every hardship written by the USC should be documented with evidence. The hardship to you does not matter in a waiver packet, only the hardships to the US citizen. Best wishes!

Hopeful, Thank you for taking us off of the tangent and back to the issue at hand.

Hi everyone, sorry it took so long in me replying to all your responses. I've been having problems with my old account.

Ok, the wavier i'm applying for is a travel waiver. It basically allows me to go back and forth across the border since I was deemed inadmissable. Now I went and started the process for that, I got my fingerprints back from the RCMP two days ago. It says that I have no criminal record in Canada, in which I knew it was going to say that already, since my charges were in the US and are on the terms of being expunged. My possession charge was on 0.3g of mariguana, wayyy less than the 30g, that would make not excluded. Now back to my original question

Should I go ahead with this waiver, since I've already started the process (I haven't mailed the packet in yet)
Can I still apply for the K1 without applying for the travel waiver??
If I do, would I still have to apply for this waiver anyway and could it hold up the process of the K1...so therefore should I just apply for both???

All of your responses have been very helpful. Thank you all so much!!

The waiver that you need for a k-1 must be submitted AFTER you are denied. The k-1 is called a non-immigrant visa, but is treated as an immigrant visa because you are allowed to adjust status after entering to immigrant status. This will of course save you money in case the charges are expunged, or are small enought to qualify for the section of law I showed you.

It is possible that you won't need a waiver, but if you do, it has to be filed with the consulate during or after your interview. A waiver done before your interview will not help for the k-1, it will only allow you to travel as a visitor.

Again, talk to an attorney for a case specific more certain answer.

Just to add to this, any kind of drug conviction will make you inadmissible, either as a visitor or as an immigrant. As a visitor, you can request a waiver, usually using I-192, but check with the consulate to be sure they don't have a local requirement or actually require that form.

As an immigrant (including for K-1), you can currently ONLY qualify for a waiver (I-601) for a drug related conviction if it is a single conviction for marijana possession of less than 30 grams. However, if the conviction was in the 9th circuit and it is expunged, then no waiver is required for that particular conviction. If it is for any other kind of drug or anything other than possession, or for more than one single incident, there is currently NO WAIVER for an immigrant visa under any circumstance.

The I-601 is filed after your K-1 interview at which you would be denied a visa because of the inadmissibility and then allowed to file for the waiver. Along with the I-601 you will need to include substantial evidence of the extreme hardship your spouse would suffer if the visa were not granted. Check immigrate2us.net for more info on extreme hardship and waiver experiences.

I have started the waiver application I-192 ( I think that's it) to allow me to travel back and forth. I fgured I could go ahead and start the K1 application along with the travel waiver. I just didn't want my k1 to be held up if I didn't have the travel waiver. But from i'm being told on here, is that they're two totally seperate things. I don't have any other charges, so it looks like I should be ok with the K1. If i'm denied, then I would have to file for another waiver.

So from everyone's information here, I'll continue the I-192, since i've already started it, and also, file for the K1. Either way, I'll be able to enter the Country, and if I have problems with the K1, i'll still be admissable with the travel visa to able to at least travel to the US withouth any problems.

Thank you for all your help!!

I just read and re-read the instructions for the I-129 form and it says to disclose: "Crimes relating to a controlled substance or alcohol on three or more occasions, and such crimes did not arise from a single act."

I had one marijuana posession charge for 0.3g and my sentence was 24 months probation with an expungement to follow. So someone correct me if i'm wrong, but from redading this, it looks like I wouldn't even need to indicate that I had this charge. If i'm completely in left field, can someone please let me know??

The questions on the I-129F are just the beginning. For that specific one, it appears you can answer no since you only have one conviction. Those questions were added after the Adam Walsh and IMBRA rules/regs to make sure the significant other of the USC is informed from the govt, in case you didn't mention it, of issues that the govt decided the foreign spouse/fiance should be informed.

What will be the issue for your case though are the questions on the DS-230 part II that you will need to provide to the embassy as part of your interview. That is where the questions that determine inadmissibility are asked. And also where you will need to provide certified copies of court records, etc.

The questions you are asking about on the I129F pertain to the US petitioner.

As blueblue says, DS230 II is where the immigrant answers questions. As such questions relate to drugs, there is really only one answer if there has been any charge, fine or any brush of any kind with the law.

Later on at adjustment of status, the question is raised again on the I485 in the sworn statements, especially question #2. There is also only one answer available to you if there has been ANY infraction with the law regarding illegal substances.

Oh ok, thanks for the info. Hopefully with it being one charge, and with the charges to be expunged, I won't have too many troubles. Like I said, I'll still be going forward with the travel waiver, so hopefully, when the documents with the the K1 arise, I won't have too many problems. Hopefully the fact that my fiance is a police officer might be in my favour **ha ha** but that ofcourse is wishful thinking.

Anyway, to ask one more question...can I travel back and forth to the US once I get my waiver, but while my K1 is being processed??? I've heard that if the K1 is being processed, that you cannot enter the country?? Is this true??

This is an extremely FAQ....
Yes, you can visit the states once you have filed the K1 but you must show strong ties to Canada, proving that you are just visiting and you plan on returning back home.
Such as:
Letters from employers stating that you work there and when you will be returning
Pay Stubs proving you work there
Bank Statements
Credit Card Statements
Mortgage/Apartment rent agreements

Anything that proves you are returning....be honest, come prepared and you should be fine.

Oh, that's awsome.. well the proof is no problem...I have everything they need. But for sure i'll come prepared...but it's nice to have all the facts before I do. Thanks for all the info!!