BLOC3000

I am a Canadian with a pardoned record and currently work/live in the US on an H1B. I have been married to a USC for 2 years and intend on applying for an AOS then a GC, with the intention of citizenship.

As part of the process, I need to supply my past court records from my previous conviction (conditional discharge). However, with a pardoned record I can not access any court documents as they are sealed and my record in Canada is clean. Is it enough to simply provide an official document outlining my pardoned record in lieu of any other unobtainable court documentation?

Also, I have heard that even with an AOS / GC, people with convictions can be deported upon application of citizenship. Anyone have any substantiated details on either of these issues? Thanks for your help.

I found this on a legal website in the FAQ section (www.serottelaw.com)

Summary Convictions Under Canadian Criminal Law. A Canadian citizen who has a single conviction involving a crime of moral turpitude may not be inadmissible if the conviction was by "summary judgment" and not by "indictment." Under Canadian law, certain offenses may be treated by the court as summary convictions. A summary conviction in Canada carries a maximum term of imprisonment of six months. Therefore anyone with only one conviction, when it is a summary conviction for a CIMT, is not inadmissible to the U.S. This exception applies to only one CIMT conviction. If the person has more than one summary conviction, they are inadmissible and must apply for a waiver. It should be noted that the exception applies only to CIMT's and not to any type of drug convictions.

The burden of proof is always on the person to show that he is admissible. When it is known that the person has a conviction, they must provide evidence that the conviction was treated summarily. Acceptable proof of summary conviction will include a criminal record, showing the code section of a summary conviction, or court records showing that the alien was summarily convicted.

Absolute Discharge, Conditional Discharge, and Canadian Pardon. Absolute discharges for all crimes are not convictions for the purposes of U.S. immigration law. This includes all CIMT's and all drug-related charges as well.

Conditional discharges are convictions for purposes of U.S. immigration law, even though in the eyes of the Canadian government they are not convictions. This includes conditional discharges for all offenses, CIMT's and drug-related offences. Conditional discharges are granted for convictions handled both by summary conviction and as indictable offenses. So a conditional discharge for an indictable offense renders the person inadmissible, but a conditional discharge for a single CIMT offense convicted summarily will place the person within the exception, and the person is otherwise admissible. However, this exception does not apply to drug related offenses. So a conditional discharge for a drug related offense still renders the applicant inadmissible.

So, if I'm reading this correctly, and your wife did not re-offend, then I think she will be fine and no waiver is needed?

Not true. A conditional or absolute discharge is considered a conviction by the FBI and the USCIS. I know this bc my wife has a conditional discharge from 1991 and still requires an I-192 to travel and work in the US. It has not impeded her ability to obtain an H1B or TN. However, I am concerned that it may impact her ability to obtain a Greencard and citizenship.

Anyone have any insights?

Hi there.

I am a Canadian having lived in the US for several years on and off over the past decade on both TNs and an H1B. I married an American in 2008 while on an H1B. I now live overseas but have a job offer to return to the US. However, the company only sponsors TNs, not H1Bs as they took a lot of TARP funds.

They are concerned that my TN may be rejected as I am married to a USC. My response was that if I was intending dual intent etc, I would have filed for an AOS back in 2008, plus I have a work history of 5 different countries over the past 6 years.

Can anyone advise on what the risk is of a TN application rejection? This is basically my dream job and it would suck if I had to pass it up because the company cant sponsor H1Bs.

Any help is really appreciated. Thanks.