with a criminal record

[luckytxn 2,263]

Thanks for all your replies and opinions. We havnt filled out the DS230, but should I say Yes or No on question 40 and 41? I dont wanna lie but i am still confused

if second degree assault is the same as simple assault.

IF Jerome and VinhBao are right about slim to none chance of getting the visa, should i risk it? I mean I

have a 8-month-old baby and its just very hard for me taking care of the baby by myself in here, let alone if my baby cannot live with his dad ever? Do you guys

think the CO will take this into consideration? Meanwhile, I cant live in Vietnam either. Not only I dont speak any vietnamese I stayed there for 9 months and

honestly its hell of a place to me compared to the living standard in the US.

No. You never lie and always answer truthfully or you risk an outright lifetime ban. The best course would have to try to clear his record before going for the visa paperwork but since you have started the process then all you can do to go through with it and answer truthfully. I think a lawyer is needed that knows his stuff and go get a consult. Other then that then just do the process and answer truthfully and IF they deny it then go clear his record and try again. All this is going to cost money and lots of time.

For him to have served time for this offense shows it was pretty serious. The U.S. likes to keep out undesirables and a convicted felon is pretty undesirable. It can still be done though but will be hard to do on your own.

[VinhBao MyTam 3]

The DS 230 is an immigrant visa form, I thought they were doing a K1 visa form which is a non immigrant visa. According to the DS 230 if it is moral turpitude then there is a serious problem. In no way shape or form would i tell anyone to lie, but if they are not required to mention something then DO NOT mention it. This is NOT visa fraud and would never be considered visa fraud, like the militarys dont ask dont tell policy, if asked tell them, if not asked dont tell them.

Those laws are for the minimums, so if the minimum is met according to the law then why are they denying visas based on THOSE LAWS????? This is why there is a class action lawsuit currently going on right now, the consulate is denying people based on 1 trip and not enough photos which by some people is wrong and not legal thus the class action lawsuit, so..... this is why I say who cares about the sentence, if it is not classified as moral turpitude the CO will STILL do what he wants to do, and even if it is not listed or considered as moral turpitude in the United States, the CO can and probably WOULD consider it spousal abuse and deny the visa.

Jerome, I don't think you're seeing my point. The laws you're referencing are for the petition, not the visa. They are not denying petitions based on that... if your complaint is about denying VISAs, you can't use the PETITION minimum requirements as a standard.

[VinhBao MyTam 3]

No. You never lie and always answer truthfully or you risk an outright lifetime ban. The best course would have to try to clear his record before going for the visa paperwork but since you have started the process then all you can do to go through with it and answer truthfully. I think a lawyer is needed that knows his stuff and go get a consult. Other then that then just do the process and answer truthfully and IF they deny it then go clear his record and try again. All this is going to cost money and lots of time.

For him to have served time for this offense shows it was pretty serious. The U.S. likes to keep out undesirables and a convicted felon is pretty undesirable. It can still be done though but will be hard to do on your own.

Lucky, there was no jail time.

Clearing the record doesn't solve the problem, b/c it asks if you're ever been arrested.... then describe... regardless of a cleared record, the story is gonna be the same.

[BinhJerome 14]

Jerome, I don't think you're seeing my point. The laws you're referencing are for the petition, not the visa. They are not denying petitions based on that... if your complaint is about denying VISAs, you can't use the PETITION minimum requirements as a standard.

You are not seeing my point. With our CO they outright lied to deny us a visa. I know this because I hired a lawyer and got all the information they had including the notes the actual CO took. In these notes it clearly said over 100 photos, and he noted that I was in Vietnam 3 times before the denial was issued, and on the denial we WERE denied for not enough photo proof that we had only been together 2 or 3 days, and that I had only made 1 trip to Vietnam. These issues are also now being currently looked into with a class action lawsuit. If these are the minimum requirements to get an application approved they are ALSO some but NOT all of the minmums to get a VISA issued. My friend the CO in HCMC has said as much, that they are not allowed to deny a person when minimums are met for the minimums. They can deny for other reasons but they are NOT supposed to deny for people just meeting the minimums. This is why many petitions are reaffirmed because when they get back to the US the review board sees the reasons for denial and knows that the minimums have been met, depending on what other reasons they are denied for and what service center it goes to the petition stands a very good chance of getting reaffirmed.

To the OP, NEVER LIE PERIOD if you lie and they find out you WILL be banned for life from getting a visa. Just having a child is no reason for the CO to give you a visa, and with the current conviction it is all the reason to deny you. If your loved on has attacked you before with all the studies about domestic violence they would be in fear of not only your life but that of your child. Being convicted of assault even a misdemeanor is serious. What if it happens again? What if they issue the visa, he comes to america and assaults you again, but this time so that he doesnt get into trouble he kills you instead because he does not want to get sent back to Vietnam? I am not saying this would/will happen, but this IS what the CO will more than likely be thinking. If you are serious about this visa then I would say you need to get a lawyer ASAP and in the mean time DO NOT LIE! Fill out the sheet, you can add extra paper and try to explain what happened, but if what you say does not match police reports once again this is material misrepresentation which could lead to a ban. Before you fill out the DS 230 it would be wise to get a copy of the police report on the incident so that any explinations you give on the DS 230 OR at the interview match. I am sure that they will have a copy of the police report since it involves the both of you. So as others have said get a lawyer ASAP and get the police report.

Jerome

[BinhJerome 14]

Lucky, there was no jail time.

Clearing the record doesn't solve the problem, b/c it asks if you're ever been arrested.... then describe... regardless of a cleared record, the story is gonna be the same.

If the record is expunged then there is no record of it, and when they are expunged then you do not even have to admit that you were arrested or charged or convicted, but there is a time limit on how soon you can have any record expunged and it is only viable for certain crimes and you have to not been convicted with or arrested for any similar charge during said time period. This is how it works in MOST states but NOT ALL states. Regardless of the state laws expungement means that you do not have to admit to any crime, or arrest once your record has been expunged and it can only be done with the help of a lawyer.

[VinhBao MyTam 3]

Jerome, I'm aware of your situation. I am not saying you were treated fairly or legally. And not implying that the OP has a good chance of getting through.

[JimVaPhuong 4,863]

It will come up, whether the OP's husband admits it or not. The visa applicant is required to obtain a police certificate from every country they've lived in, with some exceptions. One of those exceptions is the United States. They don't require a police certificate from the United States because the consulate will have access to the NCIC extract. Once a person has been convicted on criminal charges then the NCIC record can only be expunged on the basis of a court order issued after the criminal petitions the court to expunge his records.

Only law enforcement and national security agencies have access to the full NCIC records. US consulates only have access to the extracts of those records, per 9 FAM 40.5. When they find an applicant has a criminal record in the US then they will require the applicant to produce the relevant court records so that they can make a determination whether the conviction makes them inadmissible.

9 FAM 40.21(a) N2.3-3 defines crimes against a person that involve moral turpitude. Assault would involve moral turpitude if it involved intent to kill, rape, rob, cause serious bodily harm, or involve the use of a deadly weapon. Simple assault is defined as any assault which does not require an evil intent, and is neither dangerous nor deadly. For example, assault that involved punching someone in the face would be a crime of moral turpitude. Assault that involved tugging on someone's shirt would not.

Be prepared to produce the court records for this conviction. Have a lawyer look over those records now to determine if the consulate will probably conclude the crime makes him inadmissible. If so, start preparing the I-601 waiver application and evidence now. Having a child together is a definite advantage for having an I-601 approved.