A question on US immigration laws.

A little bit of background:
I have a friend 'Bob' who approximately 8 years ago he committed a
crime in the UK in which the end result was a prison sentence of 3
years (18 months served) for assault.  Due to many legal delays this
sentence was not carried out until 2 years after the event.  First
offense, and Bob is 29 years old now.
Crime committed: 1995
Court hearing: 1998 - sentenced to 3 years
Released: 1999 (18 months served)

Current day: Bob runs an IT business in the UK which works exclusively
for one client in the USA the director of which is also a good friend.
 Bob has visited the USA twice already for a holiday without getting a
Visa (using the Visa-waiver system).
Bob is aware he may not apply to the Visa-waiver system because of his
history but just keeps his mouth shut.

Bob has now been offered a generous offer to live and work in the US
for the client company directly (the company directors who are US
citizens are fully aware of Bobs history as above and are willing to
assist him in any way they can).  Bob is interested and has asked my
help to find some definitive information so he can evalutate what to
do.

(I don't have a clue - and he's paying for the question so here we
are... :) )

I have managed to find out so far that as far as entry to the US is
concerned a disclaimer must be signed for Immigration stating a person
has never been convicted of 'moral turptitude' (whatever that is ...)
or more than 1 offense which the total sentence (if any) was more than
5 years.
Depending on what 'moral turptitude' is he may be breaking the law
when he travels there on holiday (I don't know)

I've also read some of the statements on the US embassy web site with
regards to gaining a green card (which obviously is treated very
differently from a visit), and that anyone with a criminal record is
already excluded (and must apply for a US pardon or suchlike) although
I admit a lot of the site dealt with many references to US forms and
laws which I have no information on.
(http://www.usembassy.org.uk/cons_web/visa/iv/ivindex.htm)

Bob wants to move to the USA for the dream job.  At the moment he is
unsure if he is breaking the law during his 'holiday' visits and
obviously if moving there perminantly he wants it all to be legitimate
and legal.

My question on this topic has three parts:
1. What for him would be involved in getting a green card and is he
generally stuffed per se .. ?? (I think he is but research is not my
forte).  He isn't afraid of jumping through immigration hoops however
he is concerned that applying for the green card (and being turned
down) would prevent him entry again using his current method.
2. What is the official definition of 'moral turptitude' in this
regard - (i.e. is he already breaking the law?)
3. Any/all other info/advice that may be relevent to Bob/his
situation that he can use?

If clarification of any of the above is required thats no problem.

Thanks

---

Request for Question Clarification by jbf777-ga on 18 Jul 2003 12:08 PDT

Hello -

Can you elaborate on Bob's crime?  It may have an impact on the feasibility of his 
immigration.

Thanks,

jbf777-ga
GA Researcher

---

Request for Question Clarification by journalist-ga on 18 Jul 2003 12:32 PDT

Was the crime a felony or a misdemeanor?  This would assist in
determing your friend's eligibility.

Best regards,
journalist-ga

---

Request for Question Clarification by pafalafa-ga on 18 Jul 2003 14:08 PDT

Dace-ga,

Nice of you to be helping your friend out, but what he really needs is
an immigration lawyer.

On top of the issues you raised here in your question, there's also
another stumbling block, which is that employers can't just hire
foreign nationals willy-nilly.  There's a whole complex process for
doing that, and it involves categorizing applicants into different
priorities based on their skills, etc.

In fact, this might be more of an obstacle to your friend than his
checkered past.

I worked on immigration issues several years ago, and precisely
because I'm somewhat familiar with the topic, I decided NOT to try and
answer your question.  Perhaps another researcher can handle this, but
for me, it all gets too complicated, too quickly.

Bob's would-be place of employment will probably have to file an
"immigrant petition" on Bob's behalf to have him considered for visa
status.  If the client in the US is so enamored with Bob that they're
willing to spend hundreds of thousands of dollars on his salary and
benefits over the next decade or so, then they certainly should be
willing to start the petition process, and pop for a few grand to hire
the services of an immigration attorney...someone with an expertise in
employment-related visas.

If you need help in locating an appropriate attorney, just let me
know, and I'll be happy to help.

---

Clarification of Question by dace-ga on 18 Jul 2003 22:25 PDT

To clarify on the crime ..
I believe what happened was a bar fight and Bob was convicted by
association i.e. another person did the crime and he handled the
weapon.

(Bottle was hit over someones head causing a which in the end caused a
bad facial scar to the victim - Bob handed the bottle to the perp. and
jury decided he was also guilty of the crime as he was 'involved').
The exact crime (bear in mind this is in the UK) was "assault to
severe injury and perminent disfigurement".
I'm not sure exactly how this would translate to US charges / crimes.

---

Clarification of Question by dace-ga on 18 Jul 2003 22:31 PDT

@pafalafa-ga

Thanks for the comment.  In a lot of respects I agree with you,
particularly that a US lawyer may be the way to go.
From my understanding of the immigration process the employer would
have to sponsor his application (lots of forms and some $).  They
would also have to show that no-one else (i.e. a US resident) is
qualified to do the job.
Bob (& employer) recon they can push that point in that he has already
designed a large complex web site - which the new job would be
managing and upgrading (hence no-one else knows the code or has the
source code - to employ someone else would require starting from
scratch).

But your point is well taken and I would welcome advice from any
corner both on the original question and info on where Bob could
advise the US guys to start looking for an appropriate attorney.  I
don't know if it makes any difference .. but the US company in
question is located in Phoenix, AZ.

<I am not a lawyer so can only give you the benefit of my research. 

Bob will need the services of an immigration lawyer who can be found
through the American Immigration Lawyers Association. A maximum of
$100 will be charged for a half hour consultation. All lawyers
participating in this service are licensed to practice law in a state
or territory of the United States and are currently a member in good
standing of a State Bar Association.
http://www.aila.org/contentViewer.aspx?bc=16

With a lawyers help, an application can be made for the conviction to
be waived in relation to a green card application.
http://www.hrlawinfo.com/lawguide/Immigration/out.asp

New legislation could help. Under the "Restoration of Fairness in
Immigration Act of 2002" (Fairness Act) an expunged conviction may not
be considered as a conviction for immigration purposes, regardless of
the type of crime that was committed.
http://www.rreeves.com/pub_294.htm
http://www.theorator.com/bills108/hr47.html

Although criminal convictions are not expunged in the UK. Under The
Rehabilitation of Offenders Act 1974, convictions are treated as
‘spent’ after certain periods of time without re-offending. The basis
of the UK Rehabilitation Act is that a ‘rehabilitated person’ should
be treated for all purposes in law as a person who has not been
charged with or convicted of any offence.

Changes to the UK law may help your friend’s case. The new law will be
introduced as soon as parliamentary time allows.

The lawyer could argue that in the country where the offence was
committed, the offender is no longer considered a criminal.

Under the current law, convictions where a sentence of over 2 ½  years
was imposed can never become ‘spent’.
http://www.lawontheweb.co.uk/rehabact.htm However it has been
recognized that the time periods for when a conviction becomes spent
are no longer appropriate. The UK government has started the process
of reviewing the law. Links to the report on proposed changes and the
governments response are given below.

Instead of spent convictions the new law proposes conditions on
whether or not disclosure of a criminal conviction is necessary. The
proposed period of disclosure in the new law for custodial sentences
over 30 months is the period of the sentence ordered by the court,
plus two years. In your friends case this would be five years. Under
the new proposals this would mean that on the anniversary of his
conviction in 2003 he would be considered a rehabilitated person and
treated in law as person who had not committed an offence.

Under the new law, after 2003, he would not be required to disclose
the conviction to an employer. Some types of employment are excluded
like working with children, financial and legal professions.

Currently no decision has been made about immigration and whether or
not disclosure is required for fit persons checks.
http://www.homeoffice.gov.uk/justice/sentencing/rehabilitation/act.html
http://www.homeoffice.gov.uk/docs/roaresponse.pdf


Under the visa waiver system people with a criminal record need to
apply for a visa. By entering the country and saying nothing,
according to the links given below, Bob may be breaking the law.
http://travel.state.gov/vwp.html#8
Details of the visa waiver system are given at
http://travel.state.gov/vwp.html
http://travel.state.gov/visa;ineligible.html

Definition of moral turpitude
Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), cert. denied 355 U.S.
892 (1958). Administrative case law has characterized moral turpitude
as "a nebulous concept, which refers generally to conduct that shocks
the public conscience." Obviously, offenses such as murder, voluntary
manslaughter, kidnaping, robbery, and aggravated assaults involve
moral turpitude. However, assaults not involving dangerous weapons or
evil intent have been held not to involve moral turpitude. Conspiracy,
attempt, or being an accessory involves moral turpitude if the
underlying offense involves moral turpitude. There is administrative
and judicial case law holding that any crime having as an element the
intent to defraud is a crime involving moral turpitude. See Gordon and
Mailman, Immigration Law and Procedure, § 75.05[1][d].

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01934.htm

Applying for a green card - Immigration through employment.
There are several categories of immigrant.
http://www.usais.org/premployment.htm

The application process is explained at 
http://www.immigration.gov/graphics/services/residency/employment.htm

The employer needs to fill out form I-140. A copy of this form can be
purchased for $9.00 at http://www.usais.org/forms.php#

Hiring a foreign worker. 
An employer must first prove that there are no U.S. workers who are
available to fill the position offered. A description of the process
for hiring foreign workers is given at the site below. The process is
lengthy and can take several years to complete. It involves placing a
job advertisement to attempt to hire a U.S. worker who could do the
available job. The employer must interview candidates who meet the
necessary criteria. Candidates must be evaluated against the job
criteria and a report submitted to the local State Workforce Agency
(SWA). If any qualified U.S. workers are identified then permission to
hire a foreign worker will be denied.
http://workforcesecurity.doleta.gov/foreign/perm.asp

Form ETA 750 needs to be completed – instructions are given at
http://workforcesecurity.doleta.gov/foreign/750inst.asp>


<Search strategy:>

<"rehabilitation of offenders act 1974">
<://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=%22rehabilitation+of+offenders+act+1974%22>

<"spent convictions" uk>
<://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=%22spent+convictions%22+uk>

<"moral turpitude">
<://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=%22moral+turpitude%22


<Hope this helps.>

Thank you Belinda.  As you've said yourself I really couldn't expect
any more info than you've provided without speaking to a lawyer.  I
found your research to be very informative and pretty much covers
everything - having read a copy of your answer Bob agrees.  A well
earned 5 stars.