VISA Waiver Program to USA

[NM]

Re: Visa Waiver Programme - Newbie

In summary they want me to bend over backwards and dig up the past just for them. This is reverse Common Law - guilty till proven innocent.

But didn't you plead guilty to the crime?

The fact is the matter resulted in "no conviction recorded" under Commonwealth Law, which takes precedence of US Law, as im a citizen of the Commonwealth.

It only takes precedence in Australia. In the USA, US law is all that matters. So for entry to the USA, its US law, and not Australian law, that matters. The US Immigration Officers at LAX airport are only able to apply US law to people wishing to enter the USA. US law has no concept of someone being found guilty and the conviction not being recorded.

Plus the additional expense of going to Sydney for an interview, because they dont believe Brisbane is worthy of its own office - how convenient. I find it intruiging how people who are found drink driving and minor traffic violations are given the red carpet treatment.

Application of logic is not a requirement. If you want to enter their country, you need to follow their process.

Honestly, im being treated as a criminal, despite not having a criminal record.

As far as the US is concerned, you pleaded guilty to a crime. Rightly or wrongly, whether a conviction was recorded or not does not seem to matter to the US Department of Immigration. US law does not understand the concept applied under Australian law where someone can plead guilty and not have a conviction recorded. In the eyes of the US Department of Immigration, it would seem that the recording of the conviction is irrelevant. Its the finding of the court that is relevant, and in you case it would seem the court found you guilty as a result of your guilty plea, but the judge decided not to record the conviction.

So, I don't know what to do in relation to this matter. I firmly believe any petty matters which result in "no conviction recorded" should entitle the person to visit the US based on the conditions of this verdict - not have the US say "stiff ****" and use coercion to do what they want.

Unfortunately your firm belief, no matter how much based on logic or Australian legal process, does not change the way the US Department of Immigration views the circumstances. Ultimately they have the ability to choose who they admit to their country. As foreigners, we have very few rights when it comes to entry to the USA.

I also dont know the chances of a Visa being issue in relation to my matter, and no one can give me any idea of the outcome - all on hope. I find it intriguing that the country with the most imprisoned population, is telling me that something that occurred many years ago of a petty nature is severe enough to refuse my application under the VWP. The US system is a joke - literally.

The advice you were given 10 years ago to plead guilty and not have a conviction recorded may have been sound advice when it comes to the Australian legal system and making the "problem" go away, but as you have found there may be other implications that you were not informed about at the time.

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

I would also have concerns about any legal advisor that advised to plead gulty if the crime hadn't been committed

Why would anyone want to plead guilty just for an easy trial

Dave

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

I would also have concerns about any legal advisor that advised to plead gulty if the crime hadn't been committed

Why would anyone want to plead guilty just for an easy trial

Dave

My Lawyer recommended a guilty plea in order to reduce the time and cost required to keep challenging / chasing the matter. Again it was agreed no conviction, no record. However, back then I never thought I would have thoughts of travelling overseas. I cannot change the past.

 

[harvyk]

Re: Visa Waiver Programme - Newbie

Based on what you have said here you should be able to get a visa... In regards to the visa application asking where your wanting to go I'd suggest placing in an address of a hotel where your likely to go... This is the same problem experienced by travellers only transiting the US...

Unfortunately the VWP is off-limits now, it became off-limits as soon as you were arrested. This would hold true even if you were later released without charge. This is because they don't ask about convictions, just arrests.

Whilst yes I agree, it is an overly paranoid system, where it is guilty until proven innocent, it's also their system and their rules.

As others have said, as an alien you hold no rights in the US until your cleared by CBP.

 

[Maca44]

Re: Visa Waiver Programme - Newbie

There are a lot of complications even for an inocent person with the US term "arrested". In NSW (I don't know if it's Australia wide), but if you are the third party driver of a vehicle involved in a fatal accident, even if you were parked and the driver of the car that ran into the back of you dies, you are formally "arrested" as a procedure course to enable the Police to take you to the nearest hospital for the purpose of a blood test to determine if you have any drug and/or alcohol in your system.

As mentioned the "arrest" is only to give the Police power to take you to the hospital and for no other reason, but you are still arrested and under the terms of the VWP you would need to apply for a visa. I am being finicky about the laws relating to the VWP, but I doubt anyone would answer yes under these circumstances or apply for a visa.

New Traveller, if you have written to the US Embassy or whatever concerning this, and they replied, I wouldn't be surprised if they somehow have your name recorded somewhere..so act with caution. I can't see a problem with you getting a visa under the circumstances you have indicated, so as all those before me have mentioned, just apply for one and nominate an approximate date and the name of a hotel in Los Angeles. If those details change when you travel you have to edit your online application with the US in any event.

 

[straitman]

Re: Visa Waiver Programme - Newbie

I would also have concerns about any legal advisor that advised to plead gulty if the crime hadn't been committed

Why would anyone want to plead guilty just for an easy trial

Dave

That is a whole different topic and irrelevant to this discussion. :shock:

 

[serfty]

I have pointed the OP to a thread with some quite useful information in post 9.

Since it is less than 10 years, applying for a Visa would be the OP's best bet.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

I have pointed the OP to a thread with some quite useful information in post 9.

Since it is less than 10 years, applying for a Visa would be the OP's best bet.

Im still alive. Here's the latest:-

I have booked myself in for a US Visa interview on December 21'st in Sydney, and now have the following documents:-

* Australian Passport
* Full Birth Certificate
* Full Police Certificate with Fingerprints
* Completed online application for US Visa to be taken with me
* Fount out my "theft" matter occurred in December, 1999 and nothing since.

I have also setup a "Holiday" account for savings, but have been told by the US Consult that financial requests are not usually needed to be supplied unless you stay for a long time. Trip stay is currently 3 weeks, and will probably occur August 2010.

What I am concerned about is that since I have a full Police Certificate with Fingerprints, do I need to take any other court documents pertaining to this matter in 1999? The US Consul replied with "Applicants with prior arrests and convictions, excluding traffic offences, may wish to include any police or court documentation relating to the offence with their application". Its says Police or Court documentation, so is a Full Police Certificate with Fingerprints enough without any more? Im just terrified, getting everything together, flying to Sydney, then having the interview that I leave something out that is required.

This is literally my ticket out of here.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

New Traveller, if you have written to the US Embassy or whatever concerning this, and they replied, I wouldn't be surprised if they somehow have your name recorded somewhere..so act with caution. I can't see a problem with you getting a visa under the circumstances you have indicated, so as all those before me have mentioned, just apply for one and nominate an approximate date and the name of a hotel in Los Angeles. If those details change when you travel you have to edit your online application with the US in any event.

See, before I contacted them, I first used my non everyday email address, and I emailed them instead of calling, and before I emailed them I changed my display name to a generic name (doesnt show my real name) and worded the questions, as if I was asking on someone elses behalf. For all intensive purposes, I was asking the US Consul on behalf of someone else.

 

[stevemilo]

Re: Visa Waiver Programme - Newbie

Im still alive. Here's the latest:-

I have booked myself in for a US Visa interview on December 21'st in Sydney, and now have the following documents:-

* Australian Passport
* Full Birth Certificate
* Full Police Certificate with Fingerprints
* Completed online application for US Visa to be taken with me
* Fount out my "theft" matter occurred in December, 1999 and nothing since.

I have also setup a "Holiday" account for savings, but have been told by the US Consult that financial requests are not usually needed to be supplied unless you stay for a long time. Trip stay is currently 3 weeks, and will probably occur August 2010.

What I am concerned about is that since I have a full Police Certificate with Fingerprints, do I need to take any other court documents pertaining to this matter in 1999? The US Consul replied with "Applicants with prior arrests and convictions, excluding traffic offences, may wish to include any police or court documentation relating to the offence with their application". Its says Police or Court documentation, so is a Full Police Certificate with Fingerprints enough without any more? Im just terrified, getting everything together, flying to Sydney, then having the interview that I leave something out that is required.

This is literally my ticket out of here.

100% yes - you will need to take all court documents. When you got your fingerprint check, did they ask you if it was for a US Visa? I am pretty sure with US Visas, they tick "personal" and not "visa" on the form as the US embassy want to know each and every prior arrest/charge which will not show up if they tick "visa". Anyway, I'm sure the people there would have definitely asked you.

But yes, I can guarantee you that you will need to take all court documents and outcomes.

Also, I am curious as to how "Travis Cloake" from Collingwood AFL manages to get into the U.S.A if he recently had a charge even though it was put under "diversion" and no criminal record was recorded, it's still classed as a charge under U.S.A law. It's like there are double standards for the "well known"

 

[Maca44]

Re: Visa Waiver Programme - Newbie

Also, I am curious as to how "Travis Cloake" from Collingwood AFL manages to get into the U.S.A if he recently had a charge even though it was put under "diversion" and no criminal record was recorded, it's still classed as a charge under U.S.A law. It's like there are double standards for the "well known"

I can only assume he went through the same visa application as any other person as the US don't usually discriminate.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

100% yes - you will need to take all court documents. When you got your fingerprint check, did they ask you if it was for a US Visa? I am pretty sure with US Visas, they tick "personal" and not "visa" on the form as the US embassy want to know each and every prior arrest/charge which will not show up if they tick "visa". Anyway, I'm sure the people there would have definitely asked you.

But yes, I can guarantee you that you will need to take all court documents and outcomes."

I told the Police station this was for a US Visa and they told me the date of the offence was in December 1999. I have no prior arrests or convictions on my history, the 1999 incident was the only one. I was asked numerous times what this was for. I will receive my Police Certificate with Fingerprints soon and also a Conviction Certificate from the Brisbane Magistrates Court, and they physically told me they only supply "Conviction Certificates" and dont supply charge sheets, arrest sheets, etc only these "Certificates".

 

[stevemilo]

Re: Visa Waiver Programme - Newbie

I can only assume he went through the same visa application as any other person as the US don't usually discriminate.

Doubt it cause if he did then he would have had to wait the "5 years" like every other "normal" person has to wait.

 

[stevemilo]

Re: Visa Waiver Programme - Newbie

I told the Police station this was for a US Visa and they told me the date of the offence was in December 1999. I have no prior arrests or convictions on my history, the 1999 incident was the only one. I was asked numerous times what this was for. I will receive my Police Certificate with Fingerprints soon and also a Conviction Certificate from the Brisbane Magistrates Court, and they physically told me they only supply "Conviction Certificates" and dont supply charge sheets, arrest sheets, etc only these "Certificates".

Yeah, that sounds fine then. Good luck!

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

Yeah, that sounds fine then. Good luck!

What about this part - this is where I am worried - from here: Arrests and/or Convictions & How they affect your NIV application

"In all cases, you should gather any documents already in your possession which relate to your offense and any subsequent conviction, including court records, arrest sheets, and charge sheets."

and this one:-

"When completing the DS-160 application form you must provide information on each offense, including the type of offense, your court date, and the outcome of the case. If your police certificate says "no disclosable court outcomes" but you have committed a crime, you must provide court documents reflecting the charge."

So am I suppose to obtain court records, arrest sheet, and charge sheet for an offence with no conviction in December 1999? I was told by the Brisbane Magistrate Court they only supply Certificate of Conviction. Surely the Police Certificate with Fingerprints and Certificate of Conviction is enough? Do I need these documents and can they even be obtained? Has anyone been through a US Visa Application in an interview as I need to get this sorted.

 

[Will]

Re: Visa Waiver Programme - Newbie

For all intensive purposes, I was asking the US Consul on behalf of someone else.

Intents and purposes...

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

Intents and purposes...

Oops, but I dont know what to do about the supposed documents for an offence that occurred in 1999.

 

[stevemilo]

Re: Visa Waiver Programme - Newbie

What about this part - this is where I am worried - from here: Arrests and/or Convictions & How they affect your NIV application

"In all cases, you should gather any documents already in your possession which relate to your offense and any subsequent conviction, including court records, arrest sheets, and charge sheets."

and this one:-

"When completing the DS-160 application form you must provide information on each offense, including the type of offense, your court date, and the outcome of the case. If your police certificate says "no disclosable court outcomes" but you have committed a crime, you must provide court documents reflecting the charge."

So am I suppose to obtain court records, arrest sheet, and charge sheet for an offence with no conviction in December 1999? I was told by the Brisbane Magistrate Court they only supply Certificate of Conviction. Surely the Police Certificate with Fingerprints and Certificate of Conviction is enough? Do I need these documents and can they even be obtained? Has anyone been through a US Visa Application in an interview as I need to get this sorted.

Just take in everything that you have. That sounds like enough. As long as you have info about the court case that should be fine. If they do require anything else you don't have to go back to see them, you just have to mail in any further requirements, but you should be fine.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

Just take in everything that you have. That sounds like enough. As long as you have info about the court case that should be fine. If they do require anything else you don't have to go back to see them, you just have to mail in any further requirements, but you should be fine.

So my Police Certificate with Fingerprints and the Conviction certificate will be enough info? As far as I know you cant even get copies of Charge Sheet, arrest sheet, court record, hell even the Magistrates Court said they only suppy the certificate. Actually the Registrar at the Brisbane Magistrates Court told me these Certificates have been issue for people travelling to Canada and no issues. I felt like saying this is the "US" though, not Canada.

This is the real sticker - "When completing the DS-160 application form you must provide information on each offense, including the type of offense, your court date, and the outcome of the case. If your police certificate says "no disclosable court outcomes" but you have committed a crime, you must provide court documents reflecting the charge."

In other words as this offence resulted in conviction not recorded, if my Police Certificate shows "no discolosable court outcomes" or "no disclosable convictions" I still have to spill the beans anyway?

Maybe Im reading too much into this but Im terrified the info I have so far is not enough as I dont have "Charge Sheet, arrest sheet, court record" As for the Court Record this would probably be the Certificate of Conviction.

 

[serfty]

Maybe you could provide a statutorily declaration stating what you believe to have been the situation/circumstances/events.

A statuary declaration is a legal document and is recognized as such in our courts.