VISA K1 with Marijuana charges dropped

[Flusa 0]

Hello and thank you for this great forum. It's been few days that I'm reading it and I learned a lot of stuff. I didn't find a topic related to my situation that's why I'm opening a new subject.

Last year, I lived in America with a J1 VISA. I have been arrested with less than 5g of marijuana and drug paraphernalia (first offense). I took an attorney, I plead no guilty and I did a diversion program which does not require entering in any sort of plea (I never said "guilty" or "no contest"). I did 3 drug tests then I received a "notice of nolle prosequi". Then I came back in Europe just before the end of my J1 VISA.

Today I'd like to move back in America. I know a company which would be interested to sponsor me. Also, I have an American citizen girlfriend that I love so much! She's coming to visit me in Europe for few months, then I would like to move in the US this summer to live with her. That's why we thought about a K1 VISA, it looks like the easiest way to come back quickly.

My case have been dropped, but for immigration law, I don't know if it's still a conviction. If it's a conviction, I guess I will have to fill a waiver but it looks like very complicated in my case (marijuana + paraphernalia). This topic is speaking about a similar case, the only difference is this question about "conviction".

I'm planning to take an attorney, I contacted few of them but they want to charge me a lot of money before any talks. So I'm collecting as more information as I can, like that when I will have to pay an attorney, I will know what I'm speaking about, and I will choose the best attorney for my case.

My questions are:

- Have you heard about a similar case? (marijuana charges dropped without plea)

- How I could know if my case is a conviction for immigration?

- Do I should get an immigration attorney with strong criminal / marijuana case experience? By chance, do you know one?

Thanks a lot for your reply!

Marc

[N M 96]

Where was the arrest? I've read that LA County offers such programs and I seem to recall lawyers there saying that if you complete the diversion program, you are legally entitled to deny ever being arrested, let alone convicted. I think under the terms of the LA program, the only time you'd have to admit to the arrest would be if you applied for a law enforcement job.

Here you go:

http://www.shouselaw.com/drug-diversion.html#3

That said, applications for visas are subject to detailed scrutiny and cross checks with law enforcement databases. If your arrest flags up, and you haven't declared it, that could cause major alarm bells. As such you might want to consider declaring the arrest, but clearly state you took a diversion program and were not convicted.

[VanessaTony 3,567]

For immigration even if a record is expunged, or they admit the arrest was false or whatever you HAVE to declare it. There is no "decide if you want to". They will know. Failure to declare is a material misrepresentation and results in denial with a lifetime ban.

Whether you were convicted or not this IS an issue. They found you with drugs and drugs stuff. This is bad immigration wise. You should treat it like you were convicted.

[NoneYa 73]

If you were the petitioner, this would not be an issue as a diversion program is not a conviction. I am not sure how it effects the beneficiary.

[Flusa 0]

Thanks for your reply - much appreciated!

I did the diversion program in Florida. I should probably get an attorney from there, he will know all details of my diversion program.

I will for sure say that I've been arrested, I don't want to take any risks. But I know that for immigration, even if charges have been dropped (so no conviction) it can be considered as a conviction under immigration law

What does the immigration law say about pre-trial diversion programs?

The Immigration and Nationality Act ("INA") does not say antying about a pre-trial diversion program. Rather, it defines the term "conviction" for immigration purposes. Specifically:

The term "conviction" means, with respect to an alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been witheld, where--

(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and

(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.

INA Section 101(a)(48)(A).

I didn't enter a plea of guilty or nolo contendere but I paid fines and did 3 drug tests. Maybe my question is too specific, but I can't find any informations about a case similar to mine.

[Flusa 0]

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