N-400: DUI Deferred Sentence pending

[kj007 1]

Hi,

I'm looking for some general advice regarding timing the filing of my wife's N-400 application. My wife and I were married in December 2009. We went through the I-130 process and she successfully came to the US in July 2010. We also went through the ROC petition I-751 without any issues.

Unfortunately just as I was preparing to file her N-400 for naturalization, she was charged with a DUI in November 2013. In June 2014, the charge was reduced to reckless driving, and the sentence deferred for a period of 24 months - after which the charge will be completely dropped and apparently wiped from the record. My cousin is the criminal defense attorney managing this case for us, and he will be filing an motion in May to have the charge dismissed early (in June 2015) after a period of 12 months on the basis of her immigration status. While nothing is guaranteed, he seems fairly certain that the court process can be concluded in June. She has no other criminal history or traffic citations - just the 1 DUI (reduced to reckless driving). The fine was reduced because she completed 60 hours of community service within 12 months of the sentencing, and we have paid the fine in full.

As a result of the reckless driving charge, I have delayed filing the N-400 paperwork because I know this incident could complicate her application, and I don't want to take any unnecessary chances that could jeopardize her eligibility. I've done some digging on DUI's on VJ threads, and the general consensus seems like the 1 isolated DUI shouldn't be a deal-breaker.

The deferred sentence status is throwing me off however, because technically the charge hasn't been dismissed. The other factor here, is that my wife is in a rush to apply for citizenship asap because she wants to sponsor her mother's application for a green card. I'm trying to convince her to minimally wait until June to see if we can get the charge dismissed and more importantly dismissed on paper but I'm having trouble winning this battle though, as she really wants to file ASAP.

If I file the application before the charge is (hopefully) dropped in June, should I consult an immigration attorney to file the paperwork, or should I file by myself? Financially we are a bit tight at the moment, so I am trying to avoid paying the attorneys fees if it can be avoided. However, if going through an attorney is going to be the quickest and most efficient way to getting her citizenship given this incident, then i'll do so.

Any advice on this would be really appreciated - thanks so much

[JimmyHou 610]

Hi,

I'm looking for some general advice regarding timing the filing of my wife's N-400 application. My wife and I were married in December 2009. We went through the I-130 process and she successfully came to the US in July 2010. We also went through the ROC petition I-751 without any issues.

Unfortunately just as I was preparing to file her N-400 for naturalization, she was charged with a DUI in November 2013. In June 2014, the charge was reduced to reckless driving, and the sentence deferred for a period of 24 months - after which the charge will be completely dropped and apparently wiped from the record. My cousin is the criminal defense attorney managing this case for us, and he will be filing an motion in May to have the charge dismissed early (in June 2015) after a period of 12 months on the basis of her immigration status. While nothing is guaranteed, he seems fairly certain that the court process can be concluded in June. She has no other criminal history or traffic citations - just the 1 DUI (reduced to reckless driving). The fine was reduced because she completed 60 hours of community service within 12 months of the sentencing, and we have paid the fine in full.

As a result of the reckless driving charge, I have delayed filing the N-400 paperwork because I know this incident could complicate her application, and I don't want to take any unnecessary chances that could jeopardize her eligibility. I've done some digging on DUI's on VJ threads, and the general consensus seems like the 1 isolated DUI shouldn't be a deal-breaker.

The deferred sentence status is throwing me off however, because technically the charge hasn't been dismissed. The other factor here, is that my wife is in a rush to apply for citizenship asap because she wants to sponsor her mother's application for a green card. I'm trying to convince her to minimally wait until June to see if we can get the charge dismissed and more importantly dismissed on paper but I'm having trouble winning this battle though, as she really wants to file ASAP.

If I file the application before the charge is (hopefully) dropped in June, should I consult an immigration attorney to file the paperwork, or should I file by myself? Financially we are a bit tight at the moment, so I am trying to avoid paying the attorneys fees if it can be avoided. However, if going through an attorney is going to be the quickest and most efficient way to getting her citizenship given this incident, then i'll do so.

Any advice on this would be really appreciated - thanks so much

You're right that the charge has not been dismissed. USCIS isn't always consistent, so this is only what is likely to happen... In all likelihood, the interviewer will insist on seeing final court disposition papers before approving the application. A DUI can disqualify your wife from naturalization for up to 5 years after the offence, so the interviewer will probably need to see how the court rules before making a decision. It's a good idea to wait until this has been resolved before you apply.

Note that no matter what the outcome is, you will have to disclose this on the N400 application... if the case is dismissed and the record is expunged, the N400 instructions state that you still have to report the incident... so expect a delay no matter what, but if the charges are dropped or the case is dismissed, then the delay should be minimal as long as you have all the proper paperwork.

[dioxide45 25]

Make sure to keep all papers related to the charges and dismissal. If the record is expunged, obtaining those papers after the fact is very hard. You can never have too much documentation for stuff like this.

[S_R 148]

Do not file until charges are dismissed. It would not be approved anyways until the court process is completed. You are on the right path in deciding to be meticulous.

[moe1985 8]

I am sorry to hear about your ordeal! my thoughts to you is that have all of this dismissed and make sure the language of the plea agreement between your attorney and the prosecutor does not include anything incriminating your wife! In the eyes of USCIS, there are 2 definitions of convictions! The following types of court adjudications will show guilt, even if charges were dismissed :

1. Probation sentences
2. Deferred sentences
3. Expunged convictions
4. Pretrial interventions such as conditional discharge if accompanied by a guilty plea or plea of no-contest

With that being said, you need to wait on sending the N400, have all charges dismissed and make sure your criminal defense attorney understands the correlation between the outcome of the case and the naturalization moral of character requirements ! best of luck

Please note that I am not an attorney, I am just speaking from a personal experience and I have done some intense research on this.

Edited May 15, 2015 by moe1985

[huy_le 32]

Better to wait till the case is settled with the final court disposition because USCIS is likely to request to see it. If you want to apply now, you can but know that your wife's application will be denied and you guys will lose all the fees which are not cheap. You say you are financially tight so it is best to wait.