Inadmissibility #2 (Pls help us)

So here's the situation:
My husband (who is American) was charged with a misdemeanor 2 years ago when he was 18 for shoplifting. He did not receive jailtime, or probation, but was made to pay a fine. It is his only offense and he has not reoffended in any way since. We were concerned that this would make him inadmissible to be sponsored by me. (It has not made him inadmissible to cross the border. The guards are aware and even asked him about it, and he has been let through many times.)

We contacted an immigration lawyer and we were told to either a) apply on Humanitarian and Compassionate grounds or B) get the record expunged (and also to hire an immigration lawyer). I do not think this is a case that would qualify as humanitarian and compassionate because he does not really have cause for undue hardship in his own country (the states). Like, he's not going to die if he stays there or anything (unless it's of a broken heart...lol).  He IS eligible for expungement according to West Virginia law. And we definitely DON'T have the money for a lawyer. He is unemployed and I'm working a part time job, barely able to make ends meet.

I then contacted the CIC to verify this. I was told that yes, he is inadmissible, and should I decide to proceed with my sponsorship of him that we should fill out and send in an application for rehabilitation. I tried to clarify with the officer several times on this ("So let me get this straight, he should apply for rehabilitation even though five years has not passed?" Officer: "Yes.") but I'm still really confused about it. The officer said he should, and then we should send in the receipt and a letter explaining about it with our application for sponsorship. The officer could not say if expungement would be able to help my husband's case.

The documentation online for things like this is not at all clear. It says that if you have 2 or more summary convictions that you are considered inadmissible. It does not mention 1 conviction. (I'm guessing this would count as summary.)

So my question is, what do you think we should do?
Should we apply for rehabilitation?
Expungement?
Humanitarian and compassionate grounds?

We have been together for 3 years, married for 3 months, and as I'm sure you know, it's terrible not being able to see the person you love except maybe at 6 month intervals if you're REALLY lucky. I really don't think I have it in me to wait anymore to start my life. Please advise us on this situation.

INDEED!!

Another clarification: some states classify retail theft (shoplifting) of small amounts different from an ordinary theft based on amount. The precise nature of the criminal offence in the jurisdiction where the conviction occurred is critical and only a lawyer who can review the precise convicting record from the court can offer a reliable evaluation of it.

Not all criminal convictions result in inadmissibility. A single conviction for an offence which is definitely a "summary" offence in Canada does not result in criminal inadmissibility. However, the vast majority of relatively "minor" offences for which a criminal record is even created in the States are offences which in Canada may be prosecuted as either a summary offence or an indictable offence, and all such offences are treated by CIC as indictable. In many States, what would be an infraction in some are formally classified as misdemeanors, which are indeed criminal offences but they are the sorts of misdemeanors for which a summons or citation only is usually involved, there is no arrest, no NCIC record of conviction; these usually translate into a "summary" offence is committed in Canada and, again, a single conviction for such offences does not render one inadmissible. Some states, oddly enough, classify a great many infractions as misdemeanors, but treat them as infractions -- for example, in some states technically mere speeding is classified as a Class B (or similar designation) misdemeanor, technically punishable by up to six months (or some other time period) of incarceration, but procedurally the courts are bound by what is called a "bail schedule" and cannot impose jail, cannot enter a misdemeanor conviction. One can, of course, have been convicted of speeding many times in life and those, alone, would not constitute a criminal conviction for which one would be inadmissible. In other words, given the vast variations in State laws, there is a myriad of possibilities.

Bottom line, again, though, for the vast majority of state crimes for which a person is "arrested" and the record thereof entered into NCIC, those offences (with some exceptions I believe) usually could be prosecuted as either summary or indictable offences in Canada, and thus are treated by CIC as indictable offences resulting in inadmissibility.

As for a retail theft charge: unfortunately, while I am not sure, I believe the charge in most states is simply classified as a theft, which even if for a small amount would constitute a theft of less than (I forget the precise sum) which, again, I believe, may be charged as EITHER a summary or indictable offence. How it would probably be charged does not matter, rather, since it is an offence which may be charged as either a summary or indictable offence, for immigration purposes it is treated as an indictable offence, thus triggering inadmissibility and requiring five years to pass before eligibility for rehab status. That is, does not matter that it is an offence which could be or even most likely would be charged as a summary offence, if the statutory provision allows for it be prosecuted as an indictable offence, CIC treats it as an indictable offence.

Expungement should work. It is worth the cost of a lawyer to get this done. If one cannot now afford it, that is something to work toward.

Other alternative is to apply, suffer the refusal, and appeal with an argument based on H&C. A single minor offence of this sort, with some time past before it comes up before the Minister or the Board, which is an offence for which, in Canada, the disposition probably would have allowed a process ending with no conviction at all, probably has a very good chance of being overlooked based on H&C, depending of course on the whole application generally -- in contrast, a conviction for a single DUI faces a much, much more difficult process if the five years since has not elapsed.

As always, those who are poor are at a great disadvantage. No easy way around this. Best way around it is find a job and to be a very very good worker, and to make some money to finance the processes involved. Easier said than done, sorry. For those who are motivated, though, there are various avenues toward greatly improving their odds of finding work even in a very stressed economy -- lots of advice and info out there about how to go about this. Demands an extra-ordinary effort, of course, perhaps a lot of work for little or no return up front, but that may be the best there is.

No matter WHICHEVER COURSE OF ACTION YOU CHOOSE from the above options.
you WILL have to provide an explanation of
the incident
why it happened, the circumstances surrounding it, when and where it happened, was alcohol a contributory factor. etc....
and if you do not do so THEN they will ask you about it, in which event it WILL delay your case.
Not all offences make the person inadmissible. the manner in which it was disposed of is very crucial in determining inadmissibility or otherwise. was he convicted in a juvenile court (JUST over 18 ?) etc
you must also present a strong compelling case in YOUR favour to show that you are rehabilitated, by way of a good guy image, here include all things like how you have taken positive steps forward to a rehabilitated life style.(include even things like any courses attended. etc)


see if this helps
http://www.cic.gc.ca/english//information/applications/guides/5312E2.asp#tphp idtphp

good luck

hope it works out for you