VISA Waiver Program to USA

[Skyring]

Re: Interesting Article

As far as answering untruthfully on the ESTA/I94W it is up to the individual's moral compass.

The form does not truthfully reflect the legislation. The legislation goes into detail about crimes of moral turpitude and there is precedent law on what is considered crime enough. It doesn't mention whether being arrested needs to be disclosed. This is the interpretation of whatever bureaucrat drew up the form, and presumably it is retained because it is useful. Travellers coming to it cold may not know what "moral turpitude" means, but they will certainly know if they have been arrested or not, and ticking that box will mean the immigration staff - who presumably DO know the legislation - will investigate further.

The form also asks if you have come to America to engage in criminal or terrorist activity. What moron dreamt up that question? And what galoot would tick the box?

My opinion is that the form is poorly worded, reflecting bureaucratic convenience rather than scrupulous compliance with the underlying law, and travellers should respond in a similar fashion.

Having said that, I certainly wouldn't recommend pretending you are a cleanskin if (say) you've got a lengthy sentence for drug-smuggling in your past. That's just bending over and asking to be kicked.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

Hi all

You all know about the worry I had when I was going for my US Visa with my minor (moral turpitude) matter (petty theft) which is almost 11 years ago now. Just as a refresh, I did the right thing, waiver was recommended and waiver was approved (the wait was the hardest). Now despite this US holiday having been postponed a year, despite my US Waiver approval, I keep worrying that when I tick "yes" for Moral Turpitude (no jail time, no sentence, no prison - only a fine with Conviction Not Recorded) on the I94-W, that this is going to cause issues despite the waiver being approved by DHS beforehand.

Do I really have anything to worry about? Nothing has happened since I got my US Visa Waiver, but this keeps nagging me. Im just worried about arrving in the US, giving them the I94-W and hope I dont get turned away despite being honest. The US Consulate has advised it would rare to have any issues as I was honest plus this was over 11 years ago, and a further hour of processing may be needed in the US, plus my application, fingerprints etc are all on record now.

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

Do I really have anything to worry about? Nothing has happened since I got my US Visa Waiver, but this keeps nagging me. Im just worried about arrving in the US, giving them the I94-W and hope I dont get turned away despite being honest. The US Consulate has advised it would rare to have any issues as I was honest plus this was over 11 years ago, and a further hour of processing may be needed in the US, plus my application, fingerprints etc are all on record now.

No you don't need to worry. Since you have a visa you neither need to fill out a ESTA nor an I94-W ; you will need to fill in the white I94 which does not ask those questions , just asks for details of the visa

Having a visa does not guarantee admission to the country ( but then again nor does having no criminal issues and trying to enter on a waiver ) but there is no reason to expect there to be issues; you did the right thing, declared any issues and they have been assessed and a visa granted

Dave

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

No you don't need to worry. Since you have a visa you neither need to fill out a ESTA nor an I94-W ; you will need to fill in the white I94 which does not ask those questions , just asks for details of the visa

Having a visa does not guarantee admission to the country ( but then again nor does having no criminal issues and trying to enter on a waiver ) but there is no reason to expect there to be issues; you did the right thing, declared any issues and they have been assessed and a visa granted

Dave

Thanks for your reply and I didnt know about the White i-94 form, I had only heard / seen samples of the I-94W (green version) which I just discovered is only for the VWP which does not apply to myself. I was honest in my application, and it looks like my honesty paid off. I know having a Visa does not guarantee admission, and this is what was bugging me. I guess I worry too much, but based on what you and the US Consulate said below, Ill be fine because the DHS has already done a background check on me and decided to issue my Visa. I guess I should be damn happy it was approved.

The US Consulate said
"If an applicant has applied for a visa and applied honestly, it is very unusual to then be refused entry. However, some applicants will still be taken through secondary processing, which can take an hour or so on arrival.

Best regards,

AMVISA
U.S. Consulate General, Sydney"

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

I know having a Visa does not guarantee admission, and this is what was bugging me. I guess I worry too much,

If there was some reason for the officer to not grant admission then it would be not likely to be anything to do with the visa; same as going to any country; you may not be in breach of anything listed but any country can decide not to let you enter and that is all it is saying

I think that you can just sit back and relax now that you have the sticker in the passport; being honest is the best way to approach this whole issue

Dave

 

[carlton20]

Just wondering did any of the two people who managed to get into the Us do so withing 2 years of charged?
I wonder how some people get pulled u at customs and others dont. Wether it is a question of how much time has lapsed between your conviction and when you travel??

I have two friends; one was arrested and charged with shoplifting over 10 years ago and about 8 years ago the other one was arrested and charged with 'taking and using a conveyance without owners permission (essentially steal motor vehicle in a moment of intoxication). This was a first offence for both persons, and they given a good behaviour bond when they went to court. The second person involved with the motor vehicle has travelled to the USA on no less than 7 times since his arrest with his last trip being August 08. He ticks "no" on the entry form, has his photo/fingerprints taken and enters without a question. I do not condone what he does but it tends to confirm that US Immigration does not have access to the criminal history of Australians wanting to enter the country. The first mentioned person has entered the USA also writing 'no' on the form without a problem, and he has been there a couple of times over the past 10 years.

 

[Maca44]

Just wondering did any of the two people who managed to get into the Us do so withing 2 years of charged?

I wonder how some people get pulled u at customs and others dont. Wether it is a question of how much time has lapsed between your conviction and when you travel??

I have two friends; one was arrested and charged with shoplifting over 10 years ago and about 8 years ago the other one was arrested and charged with 'taking and using a conveyance without owners permission (essentially steal motor vehicle in a moment of intoxication). This was a first offence for both persons, and they given a good behaviour bond when they went to court. The second person involved with the motor vehicle has travelled to the USA on no less than 7 times since his arrest with his last trip being August 08. He ticks "no" on the entry form, has his photo/fingerprints taken and enters without a question. I do not condone what he does but it tends to confirm that US Immigration does not have access to the criminal history of Australians wanting to enter the country. The first mentioned person has entered the USA also writing 'no' on the form without a problem, and he has been there a couple of times over the past 10 years.

I know one travelled within 12 months of his final court hearing, and I am fairly sure the other one entered after about 18 months of receiving his bond. However, as mentioned I do not condone what they did as they should have gone through the normal application process and obtained a visa. There are now several threads on this topic and the OP's have relayed positive results from doing it this way. I personally don't believe the TSA has access to fingerprint records in Australia, but the risk of being turned back is just not worth it.

 

[wowbobwow]

Hi,

I have been reading this thread and I have found some really useful info on here. So first up thank you all for that!

I will also be travelling to Canada and the US. I will be working in canfda under the whp program and my partner will accompany me as a visitor. He has two things he was arrested for from over 10 years ago and I have asked the Canadian consulate what I needed to do about that. Since one of them was a drink driving offense where his blood alchoholreading was less than 0.08 and the other was theft but was "no conviction recorded" they told me to bring the court docs with me and to get a police cert but it should all be fine.
Now having only just realised that we needed to go through the ETSA website even for a stopover (of 5 hours) I am worried about this "moral turpitude" thing. It seems like the easiest thing to do is to tick "no" and their won't be aby info to access anyway but does anyone know if they can cross check with the Canadian Port of Entry and see that even though the police cert was clear that we told them about the DUI and the "no conviction recorded" thing. We are planning to travel back through the US a fewtimes while we are based in Canada for a year and a half.

Sorr this is long but can anyone help me? Our travel date is really soon.

Cheers in advance

 

[TomCruise]

I will post this information to again affirm my position that you do not need to declare anything:

a) If you have a spent conviction or;
b) You received a finding of guilt without conviction and have fully served any condition or bond.

Here is FEDERAL legislation from the Crimes Act 1914:

[FONT=Arial, Helvetica, sans-serif]CRIMES ACT 1914 SECT 85ZV[/FONT]
[FONT=Arial, Helvetica, sans-serif] 85ZV Spent convictions [/FONT]

[FONT=Arial, Helvetica, sans-serif] (1) Subject to Division 6, but despite any other Commonwealth law or any State law or Territory law, if a person's conviction of a Commonwealth offence or a Territory offence is spent, the person is not required:

[/FONT][FONT=Arial, Helvetica, sans-serif](a)
in any State or Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

(b) in a foreign country—to disclose to any Commonwealth authority or State authority in that country, for any purpose, the fact that the person has been charged with, or convicted of, the offence.

[/FONT][FONT=Arial, Helvetica, sans-serif]
(2) Subject to Division 6, but despite any other Commonwealth law or any Territory law, if a person's conviction of a State offence or a foreign offence is spent, the person is not required:
[/FONT] [FONT=Arial, Helvetica, sans-serif]
(a) in any Territory—to disclose to any person, for any purpose, the fact that the person has been charged with, or convicted of, the offence; or

(b) in any State or foreign country—to disclose to any Commonwealth authority in that State or country, for any purpose, the fact that the person has been charged with, or convicted of, the offence. [/FONT]

 

[zetski210]

TomCruise,

The two things that you fail to mention are:

1. There are a significant number of exclusions and conditions that apply to the spent conviction clause.
2. The spent conviction clause only applies to criminal convictions obtained within the Commonwealth. The US entry system refers to US immigration convictions which are totally seperate and therefore the spent conviction clause does not apply.

 

[serfty]

TomCruise,

The two things that you fail to mention are:

1. There are a significant number of exclusions and conditions that apply to the spent conviction clause.
2. The spent conviction clause only applies to criminal convictions obtained within the Commonwealth. The US entry system refers to US immigration convictions which are totally seperate and therefore the spent conviction clause does not apply.

1.

Being Jailed for more than 3+ years or if the offense was of a sexual nature captures all the exclusions relevant to this.

2.

With the "Spent Conviction" legislation it is illegal (as noted) for information on spent/passed to be disseminated. In which case how are the US government authorities going to know if you choose not to tell them?

 

[Dave Noble]

My understanding of a spent conviciton is that you do not need to declare them. Is this true?

From what I've read, applying for a visa is slow and expensive and not guaranteed to produce desirable results.

If you cannot TRUTHFULLY answer no to the questions posed then you need to contact the consulate and potentially obtain a visa. I would not recommend following any advice that suggests answering untruthfully

 

[TomCruise]

Zetski:

The following statement is actually incorrect.

"The spent conviction clause only applies to criminal convictions obtained within the Commonwealth. The US entry system refers to US immigration convictions which are totally seperate and therefore the spent conviction clause does not apply."

Commonwealth law does apply and it is illegal for any Australian official to release any information regarding previous spent convictions.

Keep in mind spent convictions only apply to what are considered minor crimes, as referred to by serfty - there are a many exclusions.

US immigration can ask you anything they like to determine whether or not to let you in. You do however have rights and you have the right to non-disclosure.

Do you think if they asked on your sexual preference you would have to answer?

Also another thing to note, spent convictions are exactly the same as quashed or pardoned convictions. Do you think if your conviction was quashed after an appeal and you were found not guilty you would still answer yes because you were once convicted, even though it was proven incorrect?

There is plenty of legislation on this and it is pretty black and white and if you have any doubts i highly suggest you contact a solicitor specializing in criminal law rather than the consulate. Once you contact them there's no going back.

 

[NM]

Also another thing to note, spent convictions are exactly the same as quashed or pardoned convictions. Do you think if your conviction was quashed after an appeal and you were found not guilty you would still answer yes because you were once convicted, even though it was proven incorrect?

In that situation you would need to answer yes to the question about "have you ever been charged or convicted ..." since you have been charged, even if a conviction has been quashed or spent. Hence such a person should apply for a Visa as they do not qualify for entry into the USA under the Visa Waiver Program. Having been proven to be innocent should be considered when the US government considers the visa application.

There is plenty of legislation on this and it is pretty black and white and if you have any doubts i highly suggest you contact a solicitor specializing in criminal law rather than the consulate. Once you contact them there's no going back.

I would suggest contacting a solicitor specialising in immigration law rather than criminal law. Its a US immigration issue, not a Australian criminal law issue.

Just because Australian government agencies are not going to release information about a spent conviction or a quashed conviction does not mean someone should lie on the US I94W form. Yes, its very unlikely (if not impossible) for the US government agencies to find out about an Australian spent conviction from an official Australian government source, but that does not change the fact that the person was once charged and hence should answer the question honestly. I find it incredible that someone would suggest it is ok to lie about ever being charged on an official US Government Immigration document just because the Australian law does not recognise the conviction any more and the information will not be available to them to find out for themselves. Its like saying its ok to speed if there are no policeman around to catch you.

 

[serfty]

... I find it incredible that someone would suggest it is ok to lie about ever being charged on an official US Government Immigration document just because the Australian law does not recognise the conviction any more and the information will not be available to them to find out for themselves. Its like saying its ok to speed if there are no policeman around to catch you.

I don't find it incredible at all!

There are costs, both in time and hassle, to apply for a USA visa that do not exist under the VWP. (Although there is to be a USA10 fee for an ESTA in the near future).

The application fee alone is USD131.

Some people are happy to take the remote risk in order to avoid those costs.

 

[Dave Noble]

I don't find it incredible at all!

There are costs, both in time and hassle, to apply for a USA visa that do not exist under the VWP. (Although there is to be a USA10 fee for an ESTA in the near future).

The application fee alone is USD131.

Some people are happy to take the remote risk in order to avoid those costs.

That there is effort in applying for a visa does not justify lying on an official immigration form just because it is less hassle and I cannot understand how anyone could recommend lying to US Immigration

 

[zetski210]

[FONT=&quot]TomCruise,

I take it that you have not actually spoken to any immigration legal personnel as you still don't seem to understand the difference between a Commonwealth Criminal Conviction and a US Immigration Conviction!

A US Immigration Conviction is the admittance of: any prior arrest, admission of guilt or criminal conviction relating to a specified crime (which on the entry form to the US is moral turpitude). If you have ever been arrested, even if you were released without charge or obtained a not-guilty finding, this is considered to be an Immigration Conviction. It does not matter how long ago it occurred, the form asks if you have ever been arrested or...

This being said, the bottom line is the US immigration department can only ever discover about Immigration Convictions if: [/FONT]

• [FONT=&quot]You inform them or [/FONT]
• [FONT=&quot]They are informed about them by a third party. [/FONT]

[FONT=&quot]Obviously you can choose not to inform them and that takes care of that option.
Otherwise, there are a number of methods or third parties that can legally inform the US Immigration Department. The two most prevalent are:[/FONT]

• [FONT=&quot]If your convictions are present in any ASIO/Interpol/etc register[/FONT]
• [FONT=&quot]If you apply for employment in certain fields (child care, state dept, defence...)[/FONT]

[FONT=&quot]If you apply for employment in these fields the potential employer has the right to access your criminal history from the Commonwealth and any prior (arrests or convictions) will be detected and are then passed onto US Immigration.

Say, for example, you have previously travelled to the US on a VISA waiver and not disclosed any prior arrests. You then apply for a job in the US working for a defence contractor who then obtains your complete criminal history from Australia. The Immigration Department will be informed (as they need to issue you with a temporary working VISA) and discover that you have previously travelled on the VW. They then will most likely forbid you from entering the US (probably for a VERY long time) and then whenever you travel and that little question asking you if you have ever been denied a VISA will haunt you forever....

I know all this because I have some prior arrests, but no Commonwealth criminal convictions, have spent much time (and money) seeking immigration legal advice and have had to cancel a very important business trip to the US because I chose to inform US Immigration about my two small theft charges I got over 10 years ago and had to wait too long for a waiver from Washington.

Why did I inform them? Because I work in a specialist field that, if I ever obtain a job in the US, would inform the US Immigration Department and I just really do not want to be banned from ever entering the US.

I would strongly advise anyone to do the same![/FONT]

 

[serfty]

That there is effort in applying for a visa does not justify lying on an official immigration form just because it is less hassle and I cannot understand how anyone could recommend lying to US Immigration

I did not recommend lying in that post; I simply indicate > AUD150 reasons why people would lie when there is little chance of having any issue after having done so.

Note that the ESTA itself supposedly has it's own checks and if one obtains an ESTA clearance then that indicates the chances of having any issues with the I94W are even further reduced.

Once having gained admission the the USA under the I94W in such circumstances, it's up to one's conscience and the perceived wrath and/or penance in relation any deity one may ascribe to.

 

[TomCruise]

Zetski:

I too comment this on personal experience and have spent much time and money investigating the issue with solicitors. The reason I suggest using a criminal solicitor is solicitors specializing in immigration can be hard to find and as this is a fairly black and white issue a solicitor specializing in criminal law has more than enough information regarding the relative legislation to answer most questions people have. In most cases the solicitor that defended the exact issue that is worrying the person will be able to answer any inquiries.

The main difference between our opinions that I can see is our rights as Australians. For the first part of the following statements I agree. The spent convictions scheme does not cover working in child care or in various defence/government agencies. As is the same as in Australia, if a criminal history check is required in these fields of employment previous convictions will be disclosed.

[FONT=&quot]Say, for example, you have previously travelled to the US on a VISA waiver and not disclosed any prior arrests. You then apply for a job in the US working for a defence contractor who then obtains your complete criminal history from Australia. The Immigration Department will be informed (as they need to issue you with a temporary working VISA) and discover that you have previously travelled on the VW. They then will most likely forbid you from entering the US (probably for a VERY long time) and then whenever you travel and that little question asking you if you have ever been denied a VISA will haunt you forever.

[/FONT]However, this is not the issue we are discussing. We are discussing the Visa Waiver Program.

I have sought advice from 2 solicitors on this issue, one that defended my original offence and the other a more experienced solicitor in immigration. The only advice I can give is on answering the visa waiver form;

If your conviction is spent, or;
You received a finding of guilt without conviction and have served any condition or bond -

You have the right of non-disclosure, and do not have to disclose this on the visa waiver program.

There are exemptions to the non-disclosure law! As Zetski has stated and is clearly outlined in legislation; Working in child care, or teaching, or various government agencies is exempt and a more in depth criminal history check will be required. However, this more in depth criminal history check requires authorization from you. Before any Australian government agency will disclose any of this information it requires a signed disclosure form from you that clearly outlines you are authorizing the release of information regarding spent/quashed/pardoned convictions.

I can provide this information on personal experience and information I have gathered from relevant Acts and Legislation.

 

[zetski210]

Zetski:

... If your conviction is spent, or;
You received a finding of guilt without conviction and have served any condition or bond -

You have the right of non-disclosure, and do not have to disclose this on the visa waiver program...

You DO NOT have any non-disclosure right as the VISA waiver form asks, plain and simple: "Have you EVER been arrested or ..."

Translation: If you have EVER been arrested, you MUST ANSWER "YES". It's not that hard to understand.

I only hope that you are not a lawer TomCruise, as if you are advising people to downright lie on an official US entry form, that just really bad advice!!