Arrested for DV, background check for new employer

[randomtest]

Hello,

I live in California and I was arrested for DV on charges 273.5(a). The case is still pending and we are still in process of finalizing a criminal lawyer. The court date is in Nov, and case is not yet filed.

 

Here is  the incident:

Me and my wife had an argument where she was frustrated because of her work schedule, and I was trying to cuddle to calm her down. Neighbors called the cops. While investigating, both of us separately, they noticed a small mark on my wife’s finger, which we both were not aware of and we both mentioned that it might be because of cooking. The police asked her if I tried to hit her but she said never. Later police talked to neighbors, and based on their statement, they arrested me. The very next day, my wife bailed me out. But the case is still pending.

 

But before all this happened, I was offered a job from company B (I work in company A now). All the background check, and even H1B transfer is already done. I am supposed to join them in a week and this is my last week in company A. But today suddenly 1 more email came from company B asking my consent again for background check, mentioning that background check was not complete because of some courthouses being closed because of COVID.

 

My Questions is: I know from different websites, that under California law, arrest will appear in my background check records. But I am unclear about what could be the possible implications for it from employer after knowing it. Would they wait for the court result before rejecting or accepting my employment or they will right away reject my employment ?

 

Any help in this matter is much much appreciated. Me and my wife have been stressing over this.

Thanks.

[xTDx]

Nobody here can help you. Make sure you work with the immigration attorneys before taking any kind of a deal from your criminal attorneys. Your case seems like something that a competent attorney will get dismissed in a few minutes...but that's my opinion based on what you told me. Cops just don't go arrest people just because neighbours said so. But this is 2020, anything is possible. 

[troubleduser22]

I think a bigger worry for you might be what implication this might have on your visa in the future. I am kind of in the same boat as you with regards to the charges.

[randomtest]

Thanks for the response troubleduser22. Have you figured out some solution so far ? Are you still employed ? Do you have a valid visa ?

[troubleduser22]

9 hours ago, randomtest said:

Thanks for the response troubleduser22. Have you figured out some solution so far ? Are you still employed ? Do you have a valid visa ?

I  am still employed  because  i have not  disclosed  the arrest to my company. In my  case though, the DA did  not file charges and the case did not  end up in court. I would strongly advise  getting both criminal and immigration lawyer because criminal lawyers will not always  know the immigration consequence of DV which can be a deportable offense  if convicted.

[randomtest]

This is really great piece of advice, thanks a lot for it. As per our attorney, the case cannot be dismissed right now, as it is not a court case till it is filed. Also case filing are super slow because of COVID. So I am curious to know how you managed to have the case dismissed before ending up in court. Any help here would be super useful. 

[troubleduser22]

10 hours ago, randomtest said:

This is really great piece of advice, thanks a lot for it. As per our attorney, the case cannot be dismissed right now, as it is not a court case till it is filed. Also case filing are super slow because of COVID. So I am curious to know how you managed to have the case dismissed before ending up in court. Any help here would be super useful. 

yes.. Me and  my wife both hired a lawyer immediately who talked to the DA and convinced him to not file charges in the court. And because my wife also had a lawyer, her lawyer told the DA that she will not testify which made the case really weak as the DA did  not have any evidence. So I never had to go to the court even for pre trail because the DA agreed to not filed the case. However, I am still not sure if this was the best move. I say this because:

The DA said no charges are being filed now. I received a letter saying that the DA is not filing charges now BUT can file charges later (within the statute of limitation). This is a standard letter that is given to the accused if the DA does not file charges. The down side of this is that, the letter still says that DA can file charges later. Now even though this is just a formality in wording and the DA will never file charges unless you do something stupid again, on my arrest record it shows as 'Pending investigation' or 'Open charges'. This is bad for immigration because it shows that the DA can still file charges if they wanted to (even though they will likely not if you dont repeat this in the future). but this still causes problems. So I do not know if no charges being filed is better than a lesser charge being filed. I had a friend who had to go to court because DA had filed charges but his lawyer was able to reduce it to Disturbing the peace misdemeanor.. which is non CIMT and does not render you inadmissible or deportable. 

But in my case, because no charges were filed, I was told that the visa officer at immigration can try to grill me and see if I was guilty and deny my visa. So I will have to speak to an immigration attorney in detail before my visa stamping. For now, I was advised to not go for stamping because my visa was revoked because of my arrest.

The upside however, is that because no charges were filed against me, my arrest was deemed as a 'detention' by the local police department which means i can answer 'was never arrested' for employment purposes. I still have to disclose my arrest on any govt and immigration form though.

So I am not completely sure what the best approach is here. I highly recommend you talk to immigration and criminal lawyer to see what can be done.

Edited July 29, 2020 by troubleduser22
adding additional info

[randomtest]

Thanks a lot for this detailed and helpful reply, really appreciate it.

We have already hired a criminal lawyer, and started looking for immigration lawyer.

Just one quick question: Why did you need lawyer for your wife? She could have submitted her statement via your lawyer too, right ? Or is there any advantage of hiring lawyer for wife too. Please suggest.

[troubleduser22]

On 7/29/2020 at 4:47 PM, randomtest said:

Thanks a lot for this detailed and helpful reply, really appreciate it.

We have already hired a criminal lawyer, and started looking for immigration lawyer.

Just one quick question: Why did you need lawyer for your wife? She could have submitted her statement via your lawyer too, right ? Or is there any advantage of hiring lawyer for wife too. Please suggest.

She hired a lawyer on her own. I was not allowed to contact her because there was a restraining order in place, After the order expired she told me she had hired a lawyer because she panicked.  It actually helped us out  in the end because her lawyer knew my  lawyer (coincidently) and both worked together  to get the  charge not filed by the DA. You don't  have  to  hire a lawyer for your wife but we did because  we  panicked. It worked out  in  the end

[randomtest]

I see, thanks a lot for this information. You have been a big help, appreciate all your help here.

[eagle4]

On 7/27/2020 at 10:28 PM, randomtest said:

Would they wait for the court result before rejecting or accepting my employment or they will right away reject my employment ?

Any update on your background check ? Did you have any issues passing the background check with arrest record ?

[badonis]

Any updates here, was anyone able to successfully get their H1B extended with DV case but no charges filed?

Edited February 10, 2021 by badonis
typo

[Real4t]

I have the same question. Did you pass a background check after this?

[snow1424]

@troubleduser22, I'm in the exact same position as you. Were you able to renew your H1B and go for stamping?