# 457 visa US to Australia DUI



## JD24 (Aug 20, 2014)

Hello Everyone! 

I am currently trying to join my wife who moved to Melbourne for work 2.5 months ago. I'm trying to be added to her 457. I have a DUI conviction dated 2005. In the US, the mandatory first offense is 12 months of probation along with fines, counseling, and community service. They're telling me that the Department of Immigration won't care that it was probation, because it's technically a conditional jail sentence of 12 or more months, which would automatically fail the character portion of the approval process. I have no other charges since and met all of my conditions. The amount of paperwork and extra money I'm being asked to put forth to clear this is really piling up, only to be told my visa still may be refused. 

My company is promoting me to work in Australia as soon as I'm approved to work attached to her 457. Can anyone provide any additional context/advice/hope/success stories around this? I have one foot out of the door to go be with my wife! Thanks for your help, all!


----------



## ozbound12 (Mar 23, 2012)

JD24 said:


> Hello Everyone! I am currently trying to join my wife who moved to Melbourne for work 2.5 months ago. I'm trying to be added to her 457. I have a DUI conviction dated 2005. In the US, the mandatory first offense is 12 months of probation along with fines, counseling, and community service. They're telling me that the Department of Immigration won't care that it was probation, because it's technically a conditional jail sentence of 12 or more months, which would automatically fail the character portion of the approval process. I have no other charges since and met all of my conditions. The amount of paperwork and extra money I'm being asked to put forth to clear this is really piling up, only to be told my visa still may be refused. My company is promoting me to work in Australia as soon as I'm approved to work attached to her 457. Can anyone provide any additional context/advice/hope/success stories around this? I have one foot out of the door to go be with my wife! Thanks for your help, all!


A DUI is not an issue. You will need to declare it on your application but it will not prevent you from meeting the character requirement.


----------



## JD24 (Aug 20, 2014)

ozbound12 said:


> A DUI is not an issue. You will need to declare it on your application but it will not prevent you from meeting the character requirement.


Thanks, Ozbound. I put it on my application, and the agency immediately said that because of the 12 mos probation, I automatically fail the character portion... even though it's a misdemeanor. That's why all of the extra effort and money are occurring. I feel like I'm getting pushed over by the agency.


----------



## ozbound12 (Mar 23, 2012)

JD24 said:


> Thanks, Ozbound. I put it on my application, and the agency immediately said that because of the 12 mos probation, I automatically fail the character portion... even though it's a misdemeanor. That's why all of the extra effort and money are occurring. I feel like I'm getting pushed over by the agency.


As always these agencies don't know much about immigration law. They are confusing probation for a custodial sentence, two totally different things as you know.


----------



## JD24 (Aug 20, 2014)

They handled my wife's visa - hired by her company. It never has made sense to me that they consider a probated 12 month jail sentence the same as actual confinement.


----------



## TheExpatriate (Feb 7, 2014)

Is that offence usually punishable by a 12 months or more of jail time, but it was "watered down" by the court or the DA because it was a first offence?


----------



## _shel (Mar 2, 2014)

A suspended or probated jail sentence is the same as custody. Ive seen people rejected for receiving suspended sentences. 

But did you recieve a suspended jail sentence or a community sentence?


----------



## ozbound12 (Mar 23, 2012)

A first DUI in the US in which no bodily harm or property damage is caused results in probation and a license suspension. There is no custodial sentence. There is no probated custodial sentence.


----------



## _shel (Mar 2, 2014)

Thanks, then wouldnt be an issue like you said. We have suspended sentences in the uk but still wouldn't get for solo offence. Thought it was probably the equivalent of a community sentence


----------



## JD24 (Aug 20, 2014)

TheExpatriate said:


> Is that offence usually punishable by a 12 months or more of jail time, but it was "watered down" by the court or the DA because it was a first offence?


The first and second are typically given 12 months probation. It reads as jail time probated. however if you receive two in 5 years, 10 days of mandatory jail time is employed. I only have the one, but it's the "12 months probated" that they're saying is treated just like a 12 month jail confinement... even if it's a misdemeanor. Again, this is the agency telling me this, not the Dept of Immigration.


----------



## TheExpatriate (Feb 7, 2014)

JD24 said:


> The first and second are typically given 12 months probation. It reads as jail time probated. however if you receive two in 5 years, 10 days of mandatory jail time is employed. I only have the one, but it's the "12 months probated" that they're saying is treated just like a 12 month jail confinement... even if it's a misdemeanor. Again, this is the agency telling me this, not the Dept of Immigration.


If the official documents say 12 month jail time probated, that means - from Australian immigration POV - 12 months jail time PERIOD.


12 months jail time will probably mean you do not meet character requirements.


----------



## ozbound12 (Mar 23, 2012)

TheExpatriate said:


> If the official documents say 12 month jail time probated, that means - from Australian immigration POV - 12 months jail time PERIOD. 12 months jail time will probably mean you do not meet character requirements.


Sorry but no. It is not seen that way by immigration. I can attest to this as my partner had a DUI and was able to get a visa without a problem. PERIOD.


----------



## TheExpatriate (Feb 7, 2014)

ozbound12 said:


> Sorry but no. It is not seen that way by immigration. I can attest to this as my partner had a DUI and was able to get a visa without a problem. PERIOD.


did her documents say "12 month jail time probated" ?


----------



## TheExpatriate (Feb 7, 2014)

Character and police certificate requirements


I quote from the page



> How character is assessed
> 
> You will not pass the character test if:
> 
> you have a substantial criminal record, meaning you have been sentenced to 12 months or more in prison, or multiple sentences that add up to more than 24 months in prison. *A suspended sentence is considered a prison sentence.*


@*ozbound12* was your partner's sentence 12 months or less?


----------



## ozbound12 (Mar 23, 2012)

TheExpatriate said:


> Character and police certificate requirements I quote from the page @ozbound12 was your partner's sentence 12 months or less?


It was a year suspension dude. That's the standard in the US.


----------



## TheExpatriate (Feb 7, 2014)

ozbound12 said:


> It was a year suspension dude. That's the standard in the US.


then I stand corrected.


----------



## JD24 (Aug 20, 2014)

_shel said:


> Thanks, then wouldnt be an issue like you said. We have suspended sentences in the uk but still wouldn't get for solo offence. Thought it was probably the equivalent of a community sentence


In Georgia, first offender with no harm, etc, is still 12 months to be served via probation. It is technically a custodial probated sentence, if you violate probation, you can be sentenced to serve the remainder of the time in jail. So is the second, so long as no one else is involved. I fulfilled all of my obligations with no violations. I have no other convictions and it was 9.5 years ago... I'm hoping that will be ok - otherwise she'll have to move back if I'm not cleared. 

Thanks again for chiming in - I appreciate it.


----------



## _shel (Mar 2, 2014)

Even if it is an issue being classed a a custodial being so long ago with no further offences since you should be fine. 

They're not looking for a blanket ban on those who have offended but to protect Australia from those that are still likely to. 

The case officer may ask for a declaration from you explaining the offence. Hopefully your agent has already asked you to prepare one?


----------



## JD24 (Aug 20, 2014)

I completely understand and appreciate that. Yes - this letter around the incident has been a real bear to get together. The amount of information they're asking for is pretty incredible. Luckily, I've tracked everything down. What they're saying is that they want another $1,000 in order to give me their insight on whether or not what I've provided will likely gain an approval. Sounds dodgy... but then again, I'm not an immigration assistance agency.


----------



## _shel (Mar 2, 2014)

It'll be fine, I had to write one for some juvenile offences, though not custody i did have about 6 to explain! I didn't have the full details as I was a kid at the time so put what I remembered, wasn't an issue. Then a little grovel, I was young, irresponsible and lacking guidance. Now I'm a lovely grown up who has not committed a crime as an adult. I wrote as if I was writing to a probation officer expkaining what i did, why i did it and how i'm changed from then. All was fine, I now have PR. 

Tell them to get lost $1000 for insight  you have our insight  

I think you'll be fine and paying them that money still wouldnt get you a visa if immigration thought it was not enough.


----------



## JD24 (Aug 20, 2014)

I think you're right... I'd rather save the money. After all, there isn't any additional information I could possibly provide to them. I have the letters of completion, court documents, etc. 

By the way... forgot to mention, Go Reds!!!!! Ready for a little poetry in motion on Monday - tough match but a good early season barometer. Of course, if you're an Everton fan I'll change it to god bless Tim Howard.  If you're not a football fan - disregard. 

Thanks again - this has been very stressful and it's good to have an ear to bend outside of the agency we're working with.


----------



## _shel (Mar 2, 2014)

LFC all the wa, you cant live in liverpool and not like football


----------



## JD24 (Aug 20, 2014)

TheExpatriate said:


> If the official documents say 12 month jail time probated, that means - from Australian immigration POV - 12 months jail time PERIOD.
> 
> 
> 12 months jail time will probably mean you do not meet character requirements.



Consistent with the thread _shel and I have going, I'm submitting all paperwork to address the character portion. My understanding is that they'll make the exception based on a million factors - which I'm giving to them. That is to say that I'm approaching it as if I'll initially fail that requirement, however they'll already have all of the mitigating circumstances for consideration. 

Sorry to ramble.


----------

