Hi barakonda,
Thank you for your question. Google Answers cannot provide definitive
legal advice, but I can give you my best interpretation of the laws
regarding this from the information available. Overall, the news for
you is good, and the drunk driving conviction, if your record is clear
otherwise, should not prevent you from obtaining a visa.
------------------------------------------
"My quetion is, how will my incident(drunk driving) affect me when I
apply for J1 visa at the Consulate?"
The drunk driving incident, while not a help to your application for
the J-1 visa, might not affect it negatively, either. Here is a page
from the US government detailing what criminal events can affect visa
status:
http://foia.state.gov/masterdocs/09fam/0940021aN.pdf
According to this page, the main guideline governing the revocation of
visas is that the offense must be a "crime involving moral terpitude"
or CIMT. Here are the four guidelines:
1. The offense was purely political
2. The offense committed involves moral turpitude
3. The applicant has been convicted
4. The applicant has admitted or may admit that he or she has
committed acts which constitute the essential elements of a crime
--Your offense was not political.
http://en.wikipedia.org/wiki/Political_crime
--Drunk driving does not constitute an act involving moral turpitude.
--You have been convicted.
--You have admitted to a crime.
You have admitted to (by pleading guilty) and been convicted of a
crime that is not political, but does that crime involve moral
turpitude?
The above page states:
"To render an alien ineligible...the conviction must be for a
statutory offense, which involves moral turpitude."
Moral turpitude is defined as "fraud, larceny and intent to harm a
person or thing."
In addition, "the following list assumes that the statutes involved do
not require the showing of an intent to defraud, or commit other evil:
(5) disorderly conduct
(6) drunk or reckless driving
(7) drunkenness
(14) liquor violations"
So, drunk driving by itself is not usually deemed as a crime
involving moral turpitude. However, it can be seen as a CIMT if there
are any aggravating factors.
Here is a good page on the subject:
Heller Immigration Law Group, LLC
http://www.hilglaw.com/articles/articles36.htm
"When do drunken driving convictions fall under the CIMT category?
Generally, in order to involve ?moral turpitude?, a crime must have an
intent requirement. Clear examples are murder and theft. In contrast,
certain other crimes do not have an intent requirement. For example,
as defined in most State laws, DWI (driving while intoxicated) and DUI
(driving under the influence) mean that a person was driving with a
certain blood level of alcohol or other intoxicating substance above
that legally permissible under law. Usually, there is no reference to
intent. That means, one does not have to have intended to get the car
and drive drunk (and cause an accident). The mere fact of being drunk
is enough."
According to Heller, "an ordinary DUI conviction is not considered a
CIMT unless it is combined with an aggravating factor. For example, an
alien?s DUI conviction was decided to involve moral turpitude because
the alien was found to have the aggravating factor of operating the
vehicle following the suspension of his license. The aggravating
factor was that the offender knowingly drove with a suspended
license."
You also should definitely tell the authorities about your conviction
on your visa application. Lying about it could result in dire
consequences.
"Another inquiry we get related to DUI and/or other criminal conduct
or convictions is whether the applicant should state an arrest,
citation or conviction on the immigration/visa forms, even if minor
ones. The applicant must be truthful in all these applications because
lying in writing on BCIS forms, to immigration on entry or to a U.S.
consulate officer can have even bigger consequences than what one is
lying about! Remember a simple DUI conviction by itself would not
result in a denial of an immigration benefit, but lying about it on
one?s application can and would bring up a fraud or misrepresentation
charge and can create a permanent bar to reentry, often without waiver
possibilities."
Here are some cases of people in a similar situation to yours:
http://www.laborlawtalk.com/showthread.php?p=346747#post346747
http://groups.google.com/group/alt.visa.us/browse_frm/thread/2d64f131ffdd517c/dcf74d06aeaedb0b?lnk=st&q=dui+cimt&rnum=2#dcf74d06aeaedb0b
---------------------------------------------
"Plus is there any place for me to
check the police records?"
Since you stated that the conviction was in Wisconsin, I have looked
up how to find police records in that state.
Did the police take fingerprints of you upon your arrest? If so, your
police records can be found in the Wisconsin Open Records Database.
http://www.doj.state.wi.us/DLES/CIB/crimback
"Wisconsin is an "open records" state. Wisconsin statute 19.35(3)
provides that most records maintained by state and local government
agencies are open to the general public for inspection. All adult
criminal records in the CIB database are included in the open record
rule."
Internet requests for searches cost $13; fax or mail searches cost $18.
If the police did not take fingerprints of you, you could contact the
local police department that arrested you and they will have the
records available.
If you want the court records, those should also be available to the
public under the Freedom of Information Act and can be accessed at a
few different sites. Here are some state government pages that give
access to different courts' records:
http://www.wicourts.gov/casesearch.htm
http://wcca.wicourts.gov/index.xsl
Search terms:
drunk driving visa
drunk driving visa application
dui cimt
wisconsin police records
wisconsin court records
Again, thank you for your question, and if you need any more help or
clarification, please let me know and I'll be glad to assist. In
addition, I'm glad that you will always drive safely from now on!
Cheers,
--keystroke-ga |
Clarification of Answer by
keystroke-ga
on
28 Aug 2006 21:04 PDT
Hi barakonda,
I'm glad that my research helped you.
As far as your question, here is what I can ascertain:
You may or may not have a criminal background check conducted on you
after applying for the J1 visa. Sometimes a lengthy check can cause
visa delays. The consulate might know already about your arrest, or
they may not. You will have to disclose it to them either way. In my
estimate, it is not a bad idea to ask for the court, (not the police)
records from the website I gave and bring them with you. (You would
want the court records instead of the police records because the
police records wouldn't confirm exactly what the charges are against
you as much as the court records.)
You would not be required to have these documents with you, but it
never hurts to be on the safe side.
"Last question, do I have to wait to get my visa after I applied for
the security clearance process or do the consulates have access the
records online?"
I'm not sure exactly what it is you're asking right here. Are you
asking if you will see your visa online on that site? Or whether they
will just mail the visa to you? From that site, it seems that your
visa number will be posted online when it's ready and you have to mail
in your passport to them and then go get your visa in person.
Let me know if I'm misinterpreting your question.
Thanks,
--keystroke-ga
|
