I have a UK Caution on my criminal record. The Caution is for Common Assault and occurred in a domestic situation whilst defending myself. Would this Caution prevent my I-526 from being approved if I apply for EB-5? And will it be a problem later during consular processing? What criminal charges would bar someone from immigrating through EB-5?
A person who is inadmissible to the United States would be precluded immigration through EB-5. The law on inadmissibility due to a criminal conviction is located at INA 212()a)(23). One would have to look at the specific language of the statute which you had violated to provide a definitive opinion. However, in most states of the United States, common assault does not involve the requisite mental intent to become a crime involving moral turpitude and does not rise to the level of a serious crime. Thus, common assault would not make you inadmissible. However, domestic violence could cause you problems. I suggest that you have an attorney consider the specific language of the convicting statute before investing considerable sums. Nevertheless, a caution may not even be a crime. In that case, your caution would have no impact on immigrating through an EB-5 investment.
It is hard to say without seeing the disposition and then looking at the applicable substantive law(s). Regardless, the problem would not be with the I-526 Petition. Assuming you qualify, the I-526 will be approved irrespective of the conviction. When you apply for permanent residence (presumably through consular processing), you may require a waiver - but again, we would have to take a closer look at the disposition.
You would have to provide more info about your case if you want to pursue the EB-5 visa. Certified/exemplified copies of your entire court file and police investigative reports would need to be reviewed. DOS/CIS wants this information for arrests for charges other than minor non-alcohol/drug-related traffic citations. You would also need to disclose any and all other charges/arrests. Best to talk now rather than later as things can often be explained away if dealt with early.
A conviction for a crime involving moral turpitude may make you inadmissible to the United States. Simple assault usually is not considered a crime involving moral turpitude, or it may fall under a "petty offense" exception. A criminal conviction typically will not affect the adjudication of an I-526 petition, unless the conviction is somehow an indication that the funds invested were not lawfully obtained. In your situation, that appears unlikely. You should obtain a certified copy of the conviction document and have it reviewed by an experienced immigration attorney who can advise you on the effect, if any, on your admissibility to the United States.
Consular processing would be where this issue might arise. If the UK considers this a misdemeanor offense, it should not affect the application. I would contact the Consulate in the UK and obtain a copy of offenses considered as a bar to immigration.
Please note that simple assault is not one of the crimes of inadmissibility. However, since you mentioned that your incident occurred in a domestic situation, it would be prudent to have an experienced immigration attorney review your charging documents as well as the disposition papers to make sure that your Caution does not fall under domestic violence, which is one of the crimes that may make you Inadmissible. There are many different crimes, and that one may be forgiven, but multiple violations are seen as habitual and can be a cause for inadmissibility. For example, if you have multiple driving under the influence or some other such traffic cases, you may have problems. Thus, you should retain an experienced immigration lawyer and review your particular situation, including the criminal background as well as the source of funds issues, before investing and starting the EB-5 process. Just as you get your health checked before you get sick rather than incurring big hospital and doctor's fee afterwards, it is always better to be up front with your attorney to get detailed consultation to prevent any complications. Good luck.
Past criminal history is more relevant during the consular processing stage. Usually, criminal charges relating to fraud are viewed very poorly, but using an experienced immigration attorney and proper disclosures can help your process.
Essentially, crimes that preclude admission through the EB-5 program, or any other U.S. immigration program, include aggravated felonies and crimes involving moral turpitude. A Caution is not a conviction, however, and normally would not preclude admission to the United States. However, it may involve an admission of culpability, and if a foreign national admits to the commission of a crime that admission may also be the basis of inadmissibility. I recommend you contact an immigration lawyer and provide documentation of your UK Caution.
A criminal record will not prevent approval of your I-526, but it may prevent you from subsequently getting a visa. You should discuss with an attorney the specific circumstances of your case to determine what degree of risk it may put on your visa process.
If you got a Caution it could affect your immigration to the United States. The United States would consider that a conviction under the definition in the Immigration Act.
Your UK Caution may not preclude you from filing a successful I-526 petition. I suggest you speak with an EB-5 attorney who can work with you directly. It may also be advantageous to speak with a UK barrister/solicitor who could possibly work with you on removing the infraction from your record. Best of luck!
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