I am a British citizen and I want to apply for a visa to marry a U S citizen. However, I was convicted of cheque fraud almost 15 years ago. The charge was conspiracy to obtain money and goods by deception. The amount involved was approximately £2000-£3000 ($5000USD). I understand there are generally three waivers of this crime: (a) the petty offense exception, (b) the juvenile exception, and (c) the waiver requiring that the offense occurred more than fifteen years ago and a showing of rehabilitation. I was over 18 at the time and the maximum possible sentence for the crime was more than one year. The offense occurred 14 years ago and I am clearly rehabilitated. Is one of these waivers available to me? If I am to be denied a visa, would it be easier for my fiance to marry me in U.K. then take me home with him or would the same waivers still apply?
The first two "waivers" that you mentioned are not waivers at all; they are exceptions to excludability. If you fell within either the petty offense or juvenile exceptions, you would not be excludable and would not require a waiver. However, in the present case, neither applies to you.
The third "waiver" that you mentioned is really an immigrant waiver of the exclusion ground; it appears at INA §212(h)(1)(A). However, as your crime of fraud did not occur more than 15 years ago, you are not eligible for this waiver. The good news is that you will be eligible for the waiver next year. After fifteen years with no subsequent convictions, the requirement of rehabilitation will be fairly easy to satisfy.
There is one other immigrant waiver that you have not mentioned; it is the waiver under INA §212(h)(1)(B). According to this waiver, an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence may qualify for a waiver if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.
However, the requirement of extreme hardship is a very high standard to meet. The hardship must always be more than mere inconvenience; it must be exceptional and extremely unusual. Although I don't have all the facts here, you have not mentioned any hardship that would qualify.
Your best chance is to apply for the the immigrant waiver under INA §212(h)(1)(A) a year from now. Obviously, will not be able to immigrate until you obtain this waiver. However, if you are eligible to enter under some nonimmigrant category, you could seek a nonimmigrant waiver under INA §212(d)(3) in the interim.
Are Canadian citizens on H-1B or TN status eligible for maternity and parental leave benefits?
I assume that the question it whether an alien in H-1B or TN status may accept maternity or parental leave without violating his or her nonimmigrant status. I will endeavor to answer this question below.
The INS regulations do not specifically refer to such interruptions in employment, for the purpose of maintaining nonimmigrant status. However, there are references to such interruptions in other contexts that suggest it would not be a violation of status.
For example, 8 CFR §274a.2(b)(1)(viii)(A) addresses employee reverification for the purposes of I-9 compliance. It states that an individual is continuing in his or her employment where he or she takes approved paid or unpaid leave on account of study, illness or disability of a family member, illness or pregnancy, maternity or paternity leave, vacation, union business, or other temporary leave approved by the employer.
Similarly, within the context of the time limits applicable to H (6 years) and L (7 years for L-1A, 5 years for L-1B), correspondence from the INS confirms that aliens in H or L status would be permitted to "recapture" qualifying interruptions in employment, which could include, for example, maternity leave, extended sick leave for medical treatment abroad or long-term work details outside the United States.
The Department of Labor regulations, which discuss H-1B status, make reference to interruptions in employment. Normally, if the H-1B nonimmigrant is in a nonproductive status, the employer will be required to pay the salaried employee the hourly-wage employee for a full-time week at the required wage for the occupation listed on the LCA. However, 20 CFR §655.731(c)(5)(ii) states the following:
If ... during the period of employment, an H-1B nonimmigrant experiences a period of nonproductive status due to conditions unrelated to employment which render the nonimmigrant unable to work--e.g., maternity leave, automobile accident which temporarily incapacitates the nonimmigrant, caring for an ill relative--then the employer shall not be obligated to pay the required wage rate during that period provided that the INS permits the employee to remain in the U.S. without being paid and provided further that such period is not subject to payment under other statutes such as the Family and Medical Leave Act (29 U.S.C. 2601 et seq.) or the Americans with Disabilities Act (42 U.S.C. 12101 et seq.).
Based on this it would appear as though, at least in the case of the H-1B, you will continue to be in status if you accept maternity or parental leave. Although there is no specific reference to maternity or parental leave in the case of TN status, it is reasonable to assume that such interruptions would be acceptable in the case of a TN nonimmigrant as well. However, there is a possibility that the INS will take the position that the alien is no longer working if the employer ceases to pay the alien's salary, notwithstanding the Department of Labor regulation. Therefore, taking unpaid maternity or parental leave may not be without risks.
