I don't quite understand the meaning of "moral turpitude" for the purpose of excludability. If I plead guilty to the offense of "sexual touching" in Canada, a summary conviction offense punishable by up to six months in jail, does the fact that I was not sentenced to jail plus given a conditional discharge help or hinder my U.S. immigration case? Is it the sentence, or the maximum punishment that will determine if I am eligible for permanent residency? The offense occurred in 1996 and the sentencing was in 1998.
The nature of the offense, the maximum punishment possible and the sentence actually ordered are all relevant. I will explain below.
Not all crimes are considered moral turpitude offenses. Driving under the influence or common assault are generally not considered to be crimes of moral turpitude. However, sexual offenses usually do involve moral turpitude.
Assuming that the offense is a crime of moral turpitude, there is something called the petty offense exception, which is discussed here. According to this exception, excludability will not occur where:
- the alien has committed only one crime of moral turpitude;
- the maximum penalty possible for the crime for which the alien was convicted did not exceed one year of imprisonment; and
- the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.
If the maximum penalty is more than one year of imprisonment, the exception does not apply. Also, if the actual period of imprisonment (if any) imposed was greater than six months, the exception does not apply. Clearly, both are relevant to the issue of excludability.
In your case, assuming that you have committed only one offense of moral turpitude, you would be entitled to claim the benefit of the petty offense exception. You would be entitled to enter the United States without seeking a formal waiver.
However, if you have committed more than one offense of moral turpitude, you are excludable and will require a waiver. For permanent residence purposes, two types of immigrant waivers (for criminal excludability) are available under INA §212(h)(1). These waivers are discussed here.
My husband and I filed an application to adjust our status (I-485) in October 1997. My husband also filed for an employment authorization and it was approved. I didn't file for an employment authorization at the time because my H-1B was not due to expire until June 1998 and I thought we would get our green cards before then. However, this did not occur. My company has recently filed an H-1B extension for me and I have also filed an I-765 on my own. However, I have been waiting for more than two months and I haven't received a reply to either filing. My company says it is OK for me to continue working since they filed for the H-1B extension before my old status expired. Is that true?
You should not have filed for both an employment authorization as a pending adjustment applicant (I-765) and an extension of your H-1B since you are only permitted to hold one status at a time. However, what's done is done.
As you filed for an extension of your H-1B status prior to it's expiration, you are normally entitled to an automatic extension of your work authorization for up to 240 days while it is pending or until the extension is adjudicated, whichever comes first. Of course, this assumes that you did not leave the United States pursuant to advance parole after you filed for adjustment of status. Had you done so, you would have re-entered as an adjustment applicant rather than an H-1B. You would not have H-1B status and therefore could not extend it. I assume this did not occur.
If you get your H-1B extension approved, you are fine. If your I-765 is approved later, you should no longer have H-1B status but will be entitled to continue working under your I-765 employment authorization. If your I-765 is approved before the H-1B extension is approved, you are also fine since you will have held H-1B status up to that date.
