Hi All,

We really need your help as we are at loss as to where to start. I was refused a non immigrant visa due to a misunderstanding between the Consular and I last year at the American embassy. I was wrongly arrested in America in 2002 over shoplifting charges (petit larceny) but the case against me was dismissed in court. When I went for the interview I believe I was almost issued with the visa, but at the last finger printing the Consular told me there was a hit. She then asked me if I have ever had any immigration problems in the US and I responded no (In all honesty I knew I had never encountered any immigration problem) and thought since the case against me was dismissed I said no. I was given a letter to say the embassy would be carrying further investigations and they will contact me. I received a letter six weeks after which said I was ineligible for a non immigration because I was arrested.

To cut a long story short I will be marrying my American fiancee who has been living here in the UK for twelve years (he has indefinite leave to remain) and we would like to move to America in July. We would like to file for DCF (Direct Consular Filing). My questions are: do I file for a waiver before we send in my 1-130 or after the petition has been approved? and also how do I go about the waiver. Your comments and help would be very much appreciated since we don't know where to start. Also any views on how to go about our DCF will also be appreciated. How long does the whole DCF process take in London. Thanks

As far as I know, DCF can take anywhere between 4-6 months. Don't know anything about the waiver. I would just file the DCF paperwork to start with. My husband was refused a non-immigrant visa back in March 2004 & it wasn't even brought up this time. I don't think they really care.

Once you get the Visa, you will need to file I-751 to "remove conditions" since you haven't been married for the 2-year requirement. That is what we will have to do since we've been married just over 1 year now.

That's about all I can help you with... Best of luck with everything!

You might want to get some professional opinions on your case before you jump in; here's why.

You call it a "misunderstanding" with the CO, but you might want to review how you answered the DS-156 question "Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action?"

If you answered that question untruthfully (by accident or on purpose), that is one "complication". That question doesn't say anything about cases that were dismissed or whether your arrest was right or wrong. It asks IF you have ever been arrested.

Then there's the question of why you were applying for an NI visa when you (apparently) thought you were eligible for the VWP. B visas are quite difficult to get in London, without a good reason.

The reason for your ineligiblity has not gone away; you were not refused the NI visa for immigrant intent (which would not be a factor in an IV application). You will have to solve that ineligibility by hoping that there is a waiver that your (future) spouse can apply for. You now have two complications, and they may compound each other.
You can not file a waiver before you are refused a visa. The normal chain of events is that the USC files the peition, which gets approved, so you can apply for a visa. You go through the entire visa process and get refused at your interview. If you are prepared, you can often submit your waiver at that point, before you leave that interview. Then there is an additional wait of several months for the waiver application to be reviewed. If successful, you can then be issued a visa.

Since the normal DCF procssing time in London is 4-6 months, I do not think it's realistic to think you'll be getting your visa in time for July.

Add into all that that your BF has been living outside the US for 12 years, and you have a third complication.

All of that would point me in the direction of a US immigration attorney, experienced with family based cases AND waivers (not many are). There is an excellent waiver discussion at www.immigrate2us.net (and a great lawyer who posts there), but your case may not be a do it yourself. If you do make a run at it yourself, be prepared to spend A LOT of time in research and writing.

Thanks very very much Jennifer B and meauxna. Appreciate your time and advise.