Change of Status Problem

A friend of mine who got into trouble because of bad influence. He plead No-Contest to a felony charge and got with-held adjudication with 2 yrs probation to testify against that bad influence. 1.5 yrs ago he got his record sealed. According to immigration, his offense which would have been punishable by a minimum of 5 yrs in prison and falls under the category of aggravated felony conviction.

He has been in the US for almost 14yrs and has never been in trouble with the law. He even has a clean driving record and has completed graduate school and runs his own company. He married his girlfriend of 5+ years almost 2 yrs ago and she is a US Citizen. He has filed for a change of status and no interview date has been set.

Should the date be set, will my friend get his residency or will his application for residency serve to have him deported instead. His wife has a good job in the US but is completing her education. They have a very strong relationship where his wife is very dependant on him and the relationship. They have financial and emotional ties together.

Given the new Immigration laws is he eligible for Residency or 212C Waiver? Or does he have to uproot his wife from her comfort zone and move them over to his home land which happens to be a third world country. Is there any hope for him?

This is not an easy question to answer as the stakes are too high. If he's running his own company he and his wife should easily be able to meet with an immigration lawyer and pay for a brief consultation and get personal first hand advice. Sometimes it is knowing who in the local office would be handling the matter, and what things influence that person , such as education, marriage, children etc. rather than the strict rules of law that is critical to a successful outcome. There is a lot of discretion and that's why a professional would help.

Actually he has hired a lawyer that is supposed to be reputable but doesn't seem to have the answer to the question about eligibility for the 212C Waiver. Most of my friends funds go into the new small business that is in its start up phase and his wife's tuition and of course all the other expenses. This is why he came to me and as his friend I figured I would do some research for him. He is quite stressed. Are u saying that it is up to the discretion of the interviewing Immigration COnsultant during the interview? Is it possible that the seeing that his record got sealed that there may be no record of his aggravated felony? Is it possible that during the interview that the Interviewing officer has the authority to grant residency based on the way the interview goes. Is it possible that there will be no need for the 212C Waiver?

I've got to ask because his lawyer claims that he has no problem with acquiring the residency but the laws seem to imply something else. What's your professional opinion.

Anyone who is arrested (and convicted) will have been fingerprinted. To get a green card through adjustment of status, your friend will have been (or will be) fingerprinted and the FBI will forward the arrest/conviction record info to the INS.

What city and state is your friend in?

Good luck.

Are these fingerprints sent by the FBI directly and immediately to INS? If the FBI wasn't directly involved would they still have these fingerprints to forward over to INS after the initial arrest?

Part of the Change of Status Process for my friend was to take fingerprints, He took these fingerprints 8 mths after his record was sealed. Were those fingerprints sent directly to the FBI? Is it at that point that the results are sent to INS. Therefore INS does an FBI background Check before as part of their change of status process.

Is it that sealed records are not hidden from the FBI but only Corporate America? Therefore the INS will see that an arrest existed etc and therefore deny my friend residency at the time of the interview?

Or will it be that INS did not do an FBI check and because the record was sealed there was no record of an arrest and the only proof of an arrest was an honest response when my friend completed the application process. Apparently the application asked whether or not arrested/convicted and the response was a truthful yes.

My friend is still eligible for the 212C Waiver should he get denied at the time of the interview - am I correct? He really needs luck doesn't he?