ESTA US Visa Query

[MEL_Traveller]

Re: ESTA US Visa Query [bond ~2007]

Hello

Thanks for your reply

I thought if a crime was commited 10 years or more ago you do not need to disclose it to anyone? A DUI conviction from 1989! I wouldnt think that would be an issue at all, shows how much I know.

I'm still in two minds about applying for a Visa or just using the ESTA - do you know if the ESTA is a live system, would he be declined automatically if they had suspicions?

Affray is different to assault, he didnt actually hit anyone, he was at a party and multiple boys were arguing/yelling , a few of his friends were done for assault but as he was just there he was only charged for affray.

Sorry, just thinking out loud here!

The background behind types of activities excluded by moral turpitude seem to involve the level of 'evil intent' behind actions. The US state department documents excludes assault from the category of moral turpitude... although again I guess it would be a question of degree.

From the way you explain it, it would not be out of the ball park to tick 'no' to that question... but only your partner can make that decision.

The State Department document is here, and appears to be updated as of 2014: http://www.state.gov/documents/organization/86942.pdf

The relevant section is: 9 FAM 40.21(a) N2.3-3 Crimes Committed Against Person, Family Relationship, and Sexual Morality (CT:VISA-1810; 02-23-2012) - but you should probably read the document as a whole to see you're not captured by something else. Sub-section b(1) of the above may be relevant:

b. Crimes committed against the person, family relationship, or sexual moralitywhich do not involve moral turpitude include:
(1) Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly);

You should seek legal advice if you are unsure.

 

[juddles]

Re: ESTA US Visa Query [bond ~2007]

Clearly the OP and the partner have a doubt. That doubt can not be allayed by dozens of helpful suggestions or opinions.

If there is any doubt, I personally would ONLY discuss this with the US embassy. Any other opinion here is not concrete.

I would never risk making a mistake - it is quite possible (likely) that if the affray offence is discussed with them they can deem it harmless, or at least much LESS serious than a "small white lie" on a form.

It is not what I would consider usual that a person be given an adult criminal record just for being at a party where others were fighting. I am not dismissing the OP's version, but what I am getting to is that the "Affray" offence, whatever it was under whichever criminal code it fell under at the time, appears to have been serious enough that it justified an adult conviction. This makes me suspect that such an offence could be flagged as a violent or injury type offence for the purposes of the US. And given computer data matching, etc, that means it could still trigger something on the travelers database.

If I ever stuffed anything up with the US government, that would destroy my enjoyment of travelling at will around the globe. Please be sensible here.

 

[MEL_Traveller]

Re: ESTA US Visa Query [bond ~2007]

And given computer data matching, etc, that means it could still trigger something on the travelers database.

Do we know there actually is data matching or sharing of criminal records between the USA and Australia?

 

[serfty]

Re: ESTA US Visa Query [bond ~2007]

Do we know there actually is data matching or sharing of criminal records between the USA and Australia?

There is - see a post in the long thread on this forum regarding that.

However, it appears that if the incident is eligible to be treated as a "spent conviction" (most states have this legislation) or otherwise complies with the policies of a state government such that would result in the information not being revealed (e.g. Vic), then such information would not be shared with the USA.

i.e. The result of such matching would be in the manner of "no disclosable outcomes". (This is what is returned irrespective of whether one has a 'clean sheet' or a 'blot' which comes under 'spent' criteria.

 

[MEL_Traveller]

Re: ESTA US Visa Query [bond ~2007]

There is - see a post in the long thread on this forum regarding that.

However, it appears that if the incident is eligible to be treated as a "spent conviction" (most states have this legislation) or otherwise complies with the policies of a state government such that would result in the information not being revealed (e.g. Vic), then such information would not be shared with the USA.

i.e. The result of such matching would be in the manner of "no disclosable outcomes". (This is what is returned irrespective of whether one has a 'clean sheet' or a 'blot' which comes under 'spent' criteria.

I appreciate immigration and customs around the world can request information from foreign police forces... but at the point of entry, I'm questioning whether swiping a passport will bring up a criminal record. (This is aside from international watch lists which might trigger automatically.)

 

[Buzzard]

Re: ESTA US Visa Query [bond ~2007]

Applying for a US visa can be fun. A retired prison officer friend of mine now aged 60, recently decided to apply for a visa as he had a shop lifing conviction as a minor. Not only did he have to attend an interview, but the whole process took about 6 months!
Yes, he did get a visa, but what is it with the US that they impose such harsh regulations?
Probably easier to get into a communist country than our friend in the war against terrorism.

 

[Boca68]

Re: ESTA US Visa Query [bond ~2007]

I appreciate immigration and customs around the world can request information from foreign police forces... but at the point of entry, I'm questioning whether swiping a passport will bring up a criminal record. (This is aside from international watch lists which might trigger automatically.)

My understanding MEL_Traveller, is they don't have "live" access to those records. Mostly because of Australian Privacy Laws. They can request it at short notice, we're talking minutes, not hours or days. Swiping your passport does not provide that type of information directly. But, it may bring up flags, in only the more serious cases

 

[serfty]

Re: ESTA US Visa Query [bond ~2007]

My understanding MEL_Traveller, is they don't have "live" access to those records. Mostly because of Australian Privacy Laws. They can request it at short notice, we're talking minutes, not hours or days. Swiping your passport does not provide that type of information directly. But, it may bring up flags, in only the more serious cases

Hence requiring information on check-in for your flight to the USA.

I believe there are normally automatic checks carried out with the results available before arriving into the USA - information relating to 'spent' convictions is not disclosed with these automatic checks.

 

[carly]

Re: ESTA US Visa Query [bond ~2007]

I've literally been googling/researching this for the past two days, I think the best bet is to apply for a Visa.

I found this on the Canberra US embassy site

"Criminal Records & How they affect your application for a nonimmigrant visa
Australian applicants that have been arrested, convicted, cited, or charged
for any offense, including those involving the use of a controlled substance,
even if the charge was later dismissed, must apply for a visa prior to travel.
This applies even to spent convictions or convictions that were not recorded.
Individuals who have been convicted of minor traffic violations (such as
speeding) do not need to apply for a visa provided they are otherwise eligible
to travel on the Visa Waiver Program and receive approval via the Electronic
System of Travel Authorization. "


I went through the online wizard to see if a Visa would be needed, it was answered yes a visa would be needed due to the fact he was arrested.

The wait time for a Visa at the moment is 5 months, so considering cancelling our trip now

 

[MEL_Traveller]

Re: ESTA US Visa Query [bond ~2007]

Hence requiring information on check-in for your flight to the USA.

I believe there are normally automatic checks carried out with the results available before arriving into the USA - information relating to 'spent' convictions is not disclosed with these automatic checks.

For the purposes of the TSA watch list yes - but those checks must be completed before the plane takes off. Interpol and other persons of interest checks may be flagged, but in those cases the person would be prevented from leaving Australia by AFP.

I'd be very surprised if the passport swipe for USA purposes at check-in brought up a person's criminal record and transmitted that to the USA, or initiated a search of all Aussie police records while the person is in flight.

 

[carly]

Re: ESTA US Visa Query [bond ~2007]

Hi all,

I wanted to provide an update, we received a copy of my partners police certificate and made an appointment to see the U.S consulate to discuss the crime commited.


Long story short, my partner is eligible to use the ESTA visa waiver online, which is what we completed in the first place.


We were told that those with minor assault charges ( a heavier crime then affray) are also able to use the ESTA visa waiver program.

I was told by a friend (not the U.S consulate) that I should have refered to the tourisum legal australia website to save time and money, which lists crimes involving moral turpitude - i have copied & pasted the crimes below and hope this helps others that are in two minds about applying for a visa or not.

Abandonment of a minor child (if wilful), Adultery, Assault (with intent to
kill, commit rape, commit robbery or commit serious bodily harm), Assault (with
a dangerous or deadly weapon), Bigamy, Paternity fraud, Contributing to the
delinquency of a minor, Gross indecency, Incest (if the result of an improper
sexual relationship), Kidnapping, Lewdness, Manslaughter (Voluntary or
Involuntary if reckless), Mayhem, Murder, Pandering, Prostitution, Rape
(including "Statutory rape" by virtue of the victim's age)

 

[russ]

Re: ESTA US Visa Query [bond ~2007]

Glad to see that adultery is on the list!

 

[MEL_Traveller]

Re: ESTA US Visa Query [bond ~2007]

Hi all,

I wanted to provide an update, we received a copy of my partners police certificate and made an appointment to see the U.S consulate to discuss the crime commited.


Long story short, my partner is eligible to use the ESTA visa waiver online, which is what we completed in the first place.


We were told that those with minor assault charges ( a heavier crime then affray) are also able to use the ESTA visa waiver program.

I was told by a friend (not the U.S consulate) that I should have refered to the tourisum legal australia website to save time and money, which lists crimes involving moral turpitude - i have copied & pasted the crimes below and hope this helps others that are in two minds about applying for a visa or not.

Abandonment of a minor child (if wilful), Adultery, Assault (with intent to
kill, commit rape, commit robbery or commit serious bodily harm), Assault (with
a dangerous or deadly weapon), Bigamy, Paternity fraud, Contributing to the
delinquency of a minor, Gross indecency, Incest (if the result of an improper
sexual relationship), Kidnapping, Lewdness, Manslaughter (Voluntary or
Involuntary if reckless), Mayhem, Murder, Pandering, Prostitution, Rape
(including "Statutory rape" by virtue of the victim's age)

Thanks for the update! (And glad you don't have to go through the whole visa application process.)

Just a couple of points... you will note there is a pretty big disclaimer on the website you mentioned (tourism legal australia). The disclaimer is this:

Disclaimer Notice

The articles in this website provide a summary of the law. They do not cover the whole of the relevant law on their subject matter.

Moreover, because legal language is avoided wherever possible, there may be some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances need to be taken into account when determining how the law applies to you.

For these reasons, the articles are not a substitute for professional advice. Nor can we accept any responsibility for any actions you may take or not take, after having read the articles.
Liability is limited by the Solicitors Scheme, approved under the Professional Standards Act 1994 (NSW)

However, their discussion on 'moral turpitude' is based on official documents, and I provided a link to that document in post #21 above (as do they in their text).

The tourism law website is a good starting point, but cannot be relied upon if you turn up with the incorrect documents at border control.

 

[carly]

Re: ESTA US Visa Query [bond ~2007]

Completely agree with you, anyone who is unsure should make an appointment like i did to see the U.S Consulate, it may be inconvenient but is definitely worth your while.

 

[Boca68]

Re: ESTA US Visa Query [bond ~2007]

Glad to hear the good news Carly.

Abandonment of a minor child (if wilful), Adultery, Assault (with intent to
kill, commit rape, commit robbery or commit serious bodily harm), Assault (with
a dangerous or deadly weapon), Bigamy, Paternity fraud, Contributing to the
delinquency of a minor, Gross indecency, Incest (if the result of an improper
sexual relationship), Kidnapping, Lewdness, Manslaughter (Voluntary or
Involuntary if reckless), Mayhem, Murder, Pandering, Prostitution, Rape
(including "Statutory rape" by virtue of the victim's age)

Darn it! Bigamy, I'm in trouble now!

And , I'm wondering what "Mayhem" is?? Certainly created mayhem in my younger days. So, I had to have a look.

[h=2]may·hem[/h] (mā′hĕm′, mā′əm)n.1. Law The criminal offense of willfully maiming, disabling, or disfiguring a person.
2. Infliction of violent injury on a person or thing; wanton destruction: children committing mayhem in the flower beds.

3. A state of violent disorder or riotous confusion; havoc.
......

 

[sausagefingers]

Re: ESTA US Visa Query [bond ~2007]

Incest

What if I am visiting only the southern states ?

 

[carly]

Re: ESTA US Visa Query [bond ~2007]

Glad to hear the good news Carly.






Darn it! Bigamy, I'm in trouble now!

And , I'm wondering what "Mayhem" is?? Certainly created mayhem in my younger days. So, I had to have a look.

lol, the more i look at the tourism legal website the more i regret posting it as a resource here!

 

[russ]

Re: ESTA US Visa Query [bond ~2007]

What if I am visiting only the southern states ?

I believe it's mandatory

 

[yowie71]

Re: ESTA US Visa Query [bond ~2007]

Hi Carly,

Can i confirm that your partner had an interview with the consulate in receipt of his police check and they still referred him to use the ESTA process?
If this is the case can you explain the process involved.

Thanks

 

[juddles]

Re: ESTA US Visa Query [bond ~2007]

Hi Carly,

Can i confirm that your partner had an interview with the consulate in receipt of his police check and they still referred him to use the ESTA process?
If this is the case can you explain the process involved.

Thanks

yowie, what have you done??!!