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Do we need a waiver because he overstayed his visa, do we need a waiver because of his charge even though it has been 10 years.

Philadelphia, PA |

I am married to a foreign national who came to the U.S. on a F1 student visa. His Visa expired December 2006. About 10 years ago he pleaded no contest to a prostitution charge for which he received community and fines. His record was expunged. He has never had a charge before or after this. We are planning to apply for adjustment of status. (marriage)

Attorney Answers 4


If you are a US citizen and he is an overstay he can still adjust status. Procuring the services of a prostitute and paying a fine should not present a problem, however you need to get a copy of the disposition even if it was "expunged" and immigration needs to know about it. I agree with my colleagues that more information is needed.
Rochelle Inger, 845-270-0601

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There are many factors involved here that really cannot be answered in a forum such as this, such as whether or not you are a US citizen, whether your boyfriend is still in the US and whether he has ever left. In general, if he has remained in the US, he will not need a waiver for the overstay, assuming you are a US citizen, but there may be other issues. You should consult with an attorney to review your entire situation.

Samuel Ouya Maina, Esq. 415.391.6612 Law Offices of S. Ouya Maina, PC 332 Pine Street, Suite 707 San Francisco, CA 94104

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I am a U.S. citizen and he hasn't left the country. The main problem for my husband and I is that the prostitution is listed as a crime of moral turpitude and there is a question on the paperwork saying if you have been convicted of a crime in the last ten years so we don't know whether or not we need a waiver since it has been ten years.

Samuel Patrick Ouya Maina

Samuel Patrick Ouya Maina


Generally speaking you have to disclose any arrest when asked by CIS, as expungements usually are not recognized for immigration purposes. One conviction may not be fatal to your husband's case but TWO crimes involving moral turpitude would most probably be. I would suggest meeting with counsel.


I agree with my colleague. Too many unanswered questions, are you a USC? Is your husband still in the US? An expunged record does not mean it just went away. In fact, when records are expunged it gets difficult to get a certified copy of the disposition. You really need to take your disposition to an experienced immigration attorney who can review it and advise you accordingly. Good Luck.

The answers offered here are purely informational and do not create an attorney-client relationship. For more detailed information or to schedule a consultation please contact our office at (718) 924-2896.

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With the overstay and the criminal issue, you need representation. Please retain counsel. There is no need for a waiver for unlawful presence if he has not departed the U.S. Only a departure triggers the ten year bar.

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