US Visa question - Regarding court findings

[stevemilo]

To the OP; I've been through the process and it's as follows:


If you have ever been arrested (for crimes of moral turpitude) you MUST declare it to the US consulate.

Theft is moral turpitude.

By their laws, any arrest constitutes an immigration conviction. It does not matter what the court outcome was by Australian law, if you were officially arrested, you need to apply for a visa.

Get a Police record that displays the individual charges and outcomes. A Victorian Police VISA record does not disclose the outcome of non-(criminal) convictions. You need a personal record for the US consulate.

You will most likely be denied a visa due to criminal history.

You then apply for a waiver, which takes many weeks and they hold your passport during this time.

If your arrests were only minor and no criminal convictions exist, you have good chances of being granted a waiver.

If you get a waiver, you get a temporary visa (up to 12 months).


For each new trip into or over the US, repeat all the steps above.

More information can be found here, if you wade through the legal jargon.

That's 100% correct zetski! Out of curiousity, is the USA the only country that requires you to get a personal record? I'm pretty sure it is. Do you know if Canada requires just a visa check or do they also require a personal record?

From my experience, when you call up to book a fingerprint check they ask you if it's for a U.S visa, so I presume they would only do personal checks for the U.S.A and all other countries you would just need a visa check.

 

[TomCruise]

My god.... I have posted so much information regarding this issue and still there are questions and uncertainty. Please do a search of my username and you will find detailed legal documents containing FACTS about the system and what your rights are.

Now I can only provide advice for people in NSW as this is my state and I have researched the system to fair detail. Most states have similar policies however all of the information and legislation is easy to obtain, most of it on the internet.

For people travelling to the USA:

Have you ever been charged with a criminal offence?

Were you arrested or did you receive a court summons?

Were you convicted of the offence?

Now if you were caught doing something minor, the police officer gave you a summons to appear in court. You turn up at court on the day and you receive a finding of guilt without proceeding to conviction under section 10 of the crimes and sentencing act.

On the waiver it asks, have you ever been arrested or convicted... No and No.

Not only can you honestly answer no to this question, but this finding of guilt is treated as a spent conviction.

A spent conviction as defined by the act is the same as a quashed or pardoned conviction. I.e someone who was convicted but later appealed and was found not guilty.

For this reason it is illegal for the australian police to disclose this information to anyone, unless under special circumstances.

As defined by the act a spent conviction does not need to be disclosed to ANYONE for any reason.

Now if you have been arrested and fingerprinted things get a little more complicated. The spent convictions act does not cover arrests, so someone can legally ask you if you have been arrested. HOWEVER if you have a spent conviction the arrest would be the same if someone was arrested and later released without charge.....

At the end of the day the spent convictions act is there for a reason. So that minor charges that were commited at a young age do not impact the rest of your life.

The USA would love you to tell them everything you have ever done. The reason for these questions is that they cannot legally obtain this information, they are relying on you to admit it. Once you have they will use it against you.

Im not telling anyone to lie, but to educate themselves so they know their rights and what they do and do not have to disclose.

P.s. A finding of guilt without conivtion under section 10 will only become spent after any good behaviour bond or conditions are met.

 

[stevemilo]

My god.... I have posted so much information regarding this issue and still there are questions and uncertainty. Please do a search of my username and you will find detailed legal documents containing FACTS about the system and what your rights are.

Now I can only provide advice for people in NSW as this is my state and I have researched the system to fair detail. Most states have similar policies however all of the information and legislation is easy to obtain, most of it on the internet.

For people travelling to the USA:

Have you ever been charged with a criminal offence?

Were you arrested or did you receive a court summons?

Were you convicted of the offence?

Now if you were caught doing something minor, the police officer gave you a summons to appear in court. You turn up at court on the day and you receive a finding of guilt without proceeding to conviction under section 10 of the crimes and sentencing act.

On the waiver it asks, have you ever been arrested or convicted... No and No.

Not only can you honestly answer no to this question, but this finding of guilt is treated as a spent conviction.

A spent conviction as defined by the act is the same as a quashed or pardoned conviction. I.e someone who was convicted but later appealed and was found not guilty.

For this reason it is illegal for the australian police to disclose this information to anyone, unless under special circumstances.

As defined by the act a spent conviction does not need to be disclosed to ANYONE for any reason.

Now if you have been arrested and fingerprinted things get a little more complicated. The spent convictions act does not cover arrests, so someone can legally ask you if you have been arrested. HOWEVER if you have a spent conviction the arrest would be the same if someone was arrested and later released without charge.....

At the end of the day the spent convictions act is there for a reason. So that minor charges that were commited at a young age do not impact the rest of your life.

The USA would love you to tell them everything you have ever done. The reason for these questions is that they cannot legally obtain this information, they are relying on you to admit it. Once you have they will use it against you.

Im not telling anyone to lie, but to educate themselves so they know their rights and what they do and do not have to disclose.

P.s. A finding of guilt without conivtion under section 10 will only become spent after any good behaviour bond or conditions are met.

But what happens if you are convicted of a crime, don't get a criminal record and your police certificate says "no disclosable court outcomes"? This is still classed as a criminal record as far as the U.S.A is concerned and you would have to apply for a visa.

 

[TomCruise]

The only reason that a criminal conviction would not show up on a criminal history check is if it was spent. All other convictions and court findings will be disclosed.

As I said above if a conviction is spent you do not need to disclose it to ANYONE. That is straight from NSW legislation. A spent conviction is the same as a pardoned or quashed conviction.

In NSW you can be found guilty however be dismissed before proceeding to a conviction. I believe other states might actually convict a person then consider it spent after conditions are met. Either way, at the end of the day the conviction or court findings are spent.

 

[Dave Noble]

As I said above if a conviction is spent you do not need to disclose it to ANYONE. That is straight from NSW legislation. A spent conviction is the same as a pardoned or quashed conviction.

The USA government is not covered by this and is perfectly entitled to consider ANY cases

One doesnt *have* to visit the USA, however if wanting to, then is obligated to comply with their requirements

In NSW you can be found guilty however be dismissed before proceeding to a conviction. I believe other states might actually convict a person then consider it spent after conditions are met. Either way, at the end of the day the conviction or court findings are spent.

And this is something that still needs disclosing

Dave

 

[TomCruise]

Just some more inf that I have preivously posted that may be hard to find.

Please note these are all facts, I can provide references if reqd pm me.

A matter that has been dealt with under section 10 does not form part of a
person’s criminal record, but may be disclosed to a court when it is sentencing
with the person for further offences (see s16(1) Criminal Records Act
1991(NSW)).


Criminal Record
A criminal record is a record of convictions against you. This will be handed up
by the prosecutor if you are being sentenced for an offence in court.


Overseas Travel
(a) United States
If you wish to travel in the United States and you have a criminal record,
particularly if it is a drug conviction, you will need to apply for a tourist
visa. When applying for the tourist visa, you will need to provide details of
the conviction and punishment. Whether or not the tourist visa is issued
will depend on the nature and severity of the offence and punishment.


Spent convictions
Most convictions will become “spent” after a certain period of time. This means
that, for most purposes, the conviction is no longer part of your criminal record.
This means that, in general, you don’t have to disclose it (and the police can’t
disclose it) to anyone.


When is a conviction spent?
A conviction is said to be “spent”:
• straight away if the court dismisses the matter without recording a
conviction;
• at the end of any bond or probation if a person is released on a bond or
probation without a conviction (ie under section 10 Crimes (Sentencing
Procedure Act);
• after a 3 year crime-free period from the date of a Children’s Court
conviction;
• after a 10 year crime-free period from the date of a conviction by any other
court;
• if the conviction was for an offence which is no longer an offence.


Non-disclosure of spent convictions
In general, you are not required to disclose your spent convictions to anybody.
If you are asked on a job application about convictions you do not need to
mention spent convictions, unless you are applying for certain jobs (see below). If
your employer later discovers your spent convictions they cannot sack you for
dishonesty.
Where an Act or regulation refers to a conviction, it is taken to refer to unspent
convictions only. Where an Act allows a person’s “fitness” or “character” to be
taken into account, spent convictions usually cannot be taken into account (see
section 12(c) of the Criminal Records Act 1991 (NSW)).
Unlawful disclosure of someone’s spent convictions is an offence. It is also an
offence to unlawfully get information or to try and get information about
someone’s spent convictions (See sections 12, 13(1) and 14 of the Criminal
Records Act 1991 (NSW)).


Removing spent convictions from your criminal record
Spent convictions should be automatically deleted from your criminal record once
they become spent. If you want to make sure this happens, you may write to the
NSW Police Criminal Records Unit at:

The Leader
Criminal Records Branch
NSW Police
Locked Bag 5102
Parramatta 2124
Telephone: (02) 8835 28880

 

[TomCruise]

The USA government is not covered by this and is perfectly entitled to consider ANY cases

One doesnt *have* to visit the USA, however if wanting to, then is obligated to comply with their requirements



And this is something that still needs disclosing

Dave

Actually foreign agencies, i.e USA immigration are covered by this and it would be illegal for them to obtain information on spent convictions unless under certain exceptions. For example if you are convicted of an offence whilst in the states, information regarding spent convictions may be made available to the court as it would also be here.

 

[stevemilo]

The only reason that a criminal conviction would not show up on a criminal history check is if it was spent. All other convictions and court findings will be disclosed.

As I said above if a conviction is spent you do not need to disclose it to ANYONE. That is straight from NSW legislation. A spent conviction is the same as a pardoned or quashed conviction.

In NSW you can be found guilty however be dismissed before proceeding to a conviction. I believe other states might actually convict a person then consider it spent after conditions are met. Either way, at the end of the day the conviction or court findings are spent.

Maybe it would show up in N.S.W, but I know that on police certificates in certain states it will show up as "no disclosable court outcomes" if the magistrate does not give you a criminal record and that will happen straight away, not after a so called "spent conviction". Your information is purely based on the laws in N.S.W and does not cover Australia wide.

 

[davidj-bell]

Your information is purely based on the laws in N.S.W and does not cover Australia wide.

In fairness, TomCruise did make it clear that his advice was only relevant to NSW.

 

[TomCruise]

Maybe it would show up in N.S.W, but I know that on police certificates in certain states it will show up as "no disclosable court outcomes" if the magistrate does not give you a criminal record and that will happen straight away, not after a so called "spent conviction". Your information is purely based on the laws in N.S.W and does not cover Australia wide.

Steve you are exactly right, this information is only based on laws in NSW. However other states have similar laws but you will need to consult the legislation for your particular state.


Regarding your previous statement:

but I know that on police certificates in certain states it will show up as "no disclosable court outcomes" if the magistrate does not give you a criminal record and that will happen straight away, not after a so called "spent conviction".

This is true, the magistrate will not proceed to a conviction and you will not get a criminal record, however the court findings will be spent, straight away or if a bond or condition is imposed, once it is met. I can assure you if you are midway through a bond and you get a criminal history check it will show up as a finding of guilt.

A national criminal history check will show all disclosable convictions AND findings of guilt.

Here is some more information I have found whilst going through my notes:

Spent convictions

The aim of the "spent convictions" scheme is to prevent discrimination on the basis of old and minor criminal convictions, from anywhere in Australia or overseas, for people who have had a "clean" record since.

Spent convictions will not show up in your criminal record check.

Spent convictions also include convictions that have been set aside or pardoned.

 

[moa999]

Interesting discussion given the recent news re the young Home and Away actor who was given a No Conviction Recorded after being arrested for Cocaine posession at a Sydney nightclub.

A number of news agencies and his manager were commented as saying this would not impact his ability to go to Hollywood.

Based on the discussion above - I would have thought the "arrested" part was the problematic piece.

 

[NM]

Just because NSW (or any other Australian state) law does not permit the release of details of spent or "no conviction recorded" offences does not mean its ok to make a false statement to a question on a legal document in the USA.

The official US government form, that is lodged in the USA, does not ask if you have any convictions showing on your criminal record according to your home country's legal system. It does not say you only have to mention things they can find out about from your home country's legal system. It simply asks if you have EVER been arrested or charged with a crime involving moral turpitude.

If you have spent convictions, or "no conviction recorded", it may be true that the US government cannot "see" these things on your NSW (or any other Australian state) criminal record. But that does not mean you would not be lying or making a false declaration on an official US government declaration form. I am amazed at how many people are recommending such actions.

 

[davidj-bell]

If you have spent convictions, or "no conviction recorded", it may be true that the US government cannot "see" these things on your NSW (or any other Australian state) criminal record. But that does not mean you would not be lying or making a false declaration on an official US government declaration form. I am amazed at how many people are recommending such actions.

Serfty summed it up a few posts ago that "being economical with the truth" could be a low-risk strategy, given that, as others have noted here, if you do tell the truth, you have to apply for a visa, have that visa ritually rejected, then apply for a waiver, all for doing something silly and mild - mild enough that australian governments are happy to wipe the slate clean - when in your less mature days.

 

[stevemilo]

A national criminal history check will show all disclosable convictions AND findings of guilt.

That's right, but if there are non disclosable convictions, your police certificate will simply state "no disclosable court outcomes recorded", which means that something occured but it is not officially recorded as a criminal record (This is if "visa" is ticked on your police certificate). If "personal" is ticked, then it will show EVERYTHING. If "employment" is ticked, I believe it will show NOTHING (not even "no disclosable court outcomes recorded")

Interesting discussion given the recent news re the young Home and Away actor who was given a No Conviction Recorded after being arrested for Cocaine posession at a Sydney nightclub.

A number of news agencies and his manager were commented as saying this would not impact his ability to go to Hollywood.

Based on the discussion above - I would have thought the "arrested" part was the problematic piece.

That is completely incorrect. He was convicted and does have a criminal record and a good behaviour bond and accoring to the news 2 days ago, he now has to apply for a waiver, which means, he has to go through the same process everyone else has to go through who has had a run in with the law. Personally I'm glad he was not given "special treatment" like so many high profile celebrites are give these days.

 

[Dave Noble]

Serfty summed it up a few posts ago that "being economical with the truth" could be a low-risk strategy, given that, as others have noted here, if you do tell the truth, you have to apply for a visa, have that visa ritually rejected, then apply for a waiver, all for doing something silly and mild - mild enough that australian governments are happy to wipe the slate clean - when in your less mature days.

Regardless of whether some think it is low risk, it is insane imo to suggest lying on an official government immigration form. HAving committed crimes there is a risk of being refused a visa. If the US government think that the issue ia something that is ok, then they will grant a visa, if not then they will refuse. The decision is theirs to make not the traveller's. Being refused entry to US due to having lied on the form would have very big impact if found out

If unable to TRUTHFULLY answer NO to the VWP questions, then get a visa

Dave

 

[thewinchester]

If unable to TRUTHFULLY answer NO to the VWP questions, then get a visa

Agreed, and this is where this topic really needs to end because its simply the best advice the collective brains trust here can give to anyone on the topic.

 

[TomCruise]

Regardless of whether some think it is low risk, it is insane imo to suggest lying on an official government immigration form. HAving committed crimes there is a risk of being refused a visa. If the US government think that the issue ia something that is ok, then they will grant a visa, if not then they will refuse. The decision is theirs to make not the traveller's. Being refused entry to US due to having lied on the form would have very big impact if found out

If unable to TRUTHFULLY answer NO to the VWP questions, then get a visa

Dave

Like I have said the arrest part is the problem. If you were arrested, then not convicted you cannot honestly answer no to the question. However, if you received a court summons (not arrested) like many people are processed for very minor charges (not drugs or shoplifting). And then are not convicted under section 10 you can honestly answer no to the question.

If you were fingerprinted, you were arrested.

 

[TomCruise]

That's right, but if there are non disclosable convictions, your police certificate will simply state "no disclosable court outcomes recorded", which means that something occured but it is not officially recorded as a criminal record (This is if "visa" is ticked on your police certificate). If "personal" is ticked, then it will show EVERYTHING. If "employment" is ticked, I believe it will show NOTHING (not even "no disclosable court outcomes recorded")

I am sure you will find even someone that has a perfectly clean record, when they get a Police Cert for visa it will still say "no disclosable court outcomes".

 

[davidj-bell]

Agreed, and this is where this topic really needs to end because its simply the best advice the collective brains trust here can give to anyone on the topic.

While I'm happy to end this discussion, as it's just going around in circles, I disagree with the statement that "it's simply the best advice the collective brains trust here can give"; there is no agreement that this is the best advice; may I suggest that we agree to disagree, and leave it at that.

 

[equus]

you can honestly answer

If I am understanding the posts, NM and TomCruise are actually in complete agreement - being honest.

The distinction (and Tom is putting it well, and some people seem to be missing) is knowing exactly what you are answering, and being completely honest about that - not answering what you think is meant.

Arrested and summonsed to appear in court are not the same thing, even if you generically assume they may be, so the answer is different. Found guilty and convicted are not the same either. It is not about being economical with the truth, it is being very precise and answering the literal question.