VISA Waiver Program to USA

[NM]

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.

While I fully understand why some people would choose not to apply for a visa in some circumstances, I still find it incredible that someone would actually recommend such an action on a public forum such as this. While I respect everyone's right to state their opinion and what direction they may personally choose to take, I cannot support a public recommendation to lie on an official US government immigration form.

 

[whereishome]

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.

They have the right to ask you anything they want.

You have the right to non-disclosure. Which means NOT giving them an answer to their question. If you say "No, I HAVEN'T been arrested/convicted/whatever" when you HAVE been then you are disclosing incorrect information.

Your right of non-disclosure means that you can choose NOT to answer that question in the affirmative or the negative.

And they can choose to REQUIRE an answer to that question and can choose to withhold permission to enter the country.

Your right of non-disclosure does not mean you have a right to enter their country.

 

[Flashback]

It's interesting in WA that a DUI (or any other offence, such as Excess of 0.08, which falls as being the next step down from DUI) is counted as being a traffic offense, and not a criminal charge.

Legal Aid - Western Australia

This site seems to support that it is only a traffic offense.

From speaking to a friend in the force, he said if you didn't have your prints or photo taken, you weren't actually arrested.

Interested to see what everyone else thinks on this, especially those of you who are based in WA.

 

[Flashback]

Have just found this, here's what the US Consulate Sydney says on their website:

I had a drink driving charge. Do I need a visa?

ESTA will assess your eligibility for travel to the United States under the Visa Waiver Program. The assessment includes questions regarding previous arrests and/or convictions. However, a conviction for Driving under the Influence is not considered a crime of moral turpitude with regard to the Visa Waiver Program. If you choose to apply for electronic travel authorization via ESTA, the system will advise you whether you must visit a U.S. Embassy or Consulate to apply for a visa. For further details on ESTA and to see if you are eligible for the VWP please refer to the ESTA website.

 

[anthony7]

USA Visa Waiver approved - but just charged with a crime after

Hi all,

Long time reader... First time poster.

I'll cut to the chase, I have tickets and hotels booked for 3 friends and myself to the united states and have an approved visa waiver. However, I have just been charged with a crime (theft) and am booked to leave in just under 3 weeks.

Do I need to get a visa? I assume I have no time to get one, Will I be turned back at the border even though I have a visa waiver processed months ago. I have not even got a court date yet, so do I need to declare that I have been charged?

 

[JetLagged]

Re: USA Visa Waiver approved - but just charged with a crime after

anthony - there have been a number of threads here regarding this issue. Suggest you do a search and read through.

Others will have great knowledge of the legal and immigration issues - mind you - all depends in part on a) whether the declaration form says charged or convicted - if both, then yes, you would have to delcare it; b) how long r u planning on being out of the country - and have you advised the police of your travel plans. It might not look good for someone charged to then be found to have left for overseas, even though the holiday was planned well before.

 

[markis10]

Re: USA Visa Waiver approved - but just charged with a crime after

anthony - there have been a number of threads here regarding this issue. Suggest you do a search and read through.

Others will have great knowledge of the legal and immigration issues - mind you - all depends in part on a) whether the declaration form says charged or convicted - if both, then yes, you would have to delcare it; b) how long r u planning on being out of the country - and have you advised the police of your travel plans. It might not look good for someone charged to then be found to have left for overseas, even though the holiday was planned well before.

I am not aware of any thread where someone has gone through the process for past problems, got a waiver and then got into trouble again 3 weeks before departure! I suspect this is a newbie question.

I would have thought bail conditions would impact on travel but possibly the OP was not arrested and does not have bail, which would answer the original question to a certain extent! I think Mr Carey fitted that bill until his cases were heard and travelled to the US in the meantime, could be wrong, not an expert on such matters.

 

[NM]

Re: USA Visa Waiver approved - but just charged with a crime after

I think Mr Carey fitted that bill until his cases were heard and travelled to the US in the meantime, could be wrong, not an expert on such matters.

Was he travelling under Visa Waiver program?

 

[NM]

Re: USA Visa Waiver approved - but just charged with a crime after

I think the correct process, and what would be directed by the US Embassy/Consulate, would be to apply for a Visa. But I doubt the process of Visa application, application rejections, rejection waiver request and eventual Visa issue could be achieved in 3 weeks. So I expect the response from the USA Embassy/Consulate would be to change your travel plans.

It certainly would seem that under the circumstances described you no longer qualify for entry into the USA under the Visa Waiver Program.

 

[markis10]

Re: USA Visa Waiver approved - but just charged with a crime after

Was he travelling under Visa Waiver program?

No idea I am pleased to say, I thought I had read an interview where he had used the process in the past with no issues but I cannot find it now.

 

[MarcB]

Re: USA Visa Waiver approved - but just charged with a crime after

We have a wonderful "innocent until proven guilty" presumption in Australia - so until such time as you have your day in court - no conviction will be recorded anywhere. Being charged with a crime does not make you guilty of it.

So if the waiver form asks ONLY whether you have been convicted of a crime - then the answer is no and there should be no need to disclose a pending charge.

If the form asks for details about being charged - pending criminal procedings etc, then you may find that you are obliged to notify them. I would suggest you check the conditions of the Visa Waiver Program and confirm which of these situations apply.

Good luck.

 

[markis10]

Re: USA Visa Waiver approved - but just charged with a crime after

It certainly would seem that under the circumstances described you no longer qualify for entry into the USA under the Visa Waiver Program.

Not if they have not been arrested or convicted, is it possible to be charged with something without an arrest?

 

[MarcB]

Re: USA Visa Waiver approved - but just charged with a crime after

We have a wonderful "innocent until proven guilty" presumption in Australia - so until such time as you have your day in court - no conviction will be recorded anywhere. Being charged with a crime does not make you guilty of it.

So if the waiver form asks ONLY whether you have been convicted of a crime - then the answer is no and there should be no need to disclose a pending charge.

If the form asks for details about being charged - pending criminal procedings etc, then you may find that you are obliged to notify them. I would suggest you check the conditions of the Visa Waiver Program and confirm which of these situations apply.

Good luck.

See here on the ESTA Website:

https://esta.cbp.dhs.gov/esta/WebHe...rmation do I need to complete the application?

Scroll down to the question regarding convictions. It does mention charged or convicted - but in relation to crimes of moral turpitude.

These are "Crimes involving moral turpitude - Such offenses generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offense, that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act. "

I don't think petty theft would fall into this category - but you need to make your own call.

 

[markis10]

Re: USA Visa Waiver approved - but just charged with a crime after

See here on the ESTA Website:

https://esta.cbp.dhs.gov/esta/WebHe...rmation do I need to complete the application
Scroll down to the question regarding convictions. It does mention charged or convicted - but in relation to crimes of moral turpitude.

It mentions arrested or convicted, not charged, I think there is a difference. In the case of the OP the "arrested" part is the one that matters IMHO.

 

[Maca44]

Re: USA Visa Waiver approved - but just charged with a crime after

Not if they have not been arrested or convicted, is it possible to be charged with something without an arrest?

Incorrect. If you are charged with an offence, and by charged I mean you have your fingerprints taken etc at a Police Station, you are technically arrested for the purpose of giving Police the power to hold you without your permission for the purpose of charging and then your are bailed. Until such time as you are bailed, or issued with a Court Attendence Notice (NSW) you are still in custody. On the other hand, if you are summonsed to appear at Court then you are not arrested, even though it could be for a criminal matter.

Back to the topic; even though I am usually a stickler for the rules my brother was charged last year with shoplifting (even though he was adamant with Police and Security at the shop he purchased the $35 worth of goods elsewhere) he was charged. He was due to fly to LAX three weeks after the event; told the Police he was going away for 2 weeks and was bailed until after that date. I suggested he say "no" to the question when he entered the USA about being charged, and he had no problem. He was able to produce the receipt for the goods from another shop and the charges were withdrawn, however, he has commenced legal action for unlawful detention as the security later conceded they did not actually witness him take the goods. Although it was not the correct thing to do, he had no problems entering the USA but in doing so you do run the risk..

 

[NM]

Re: USA Visa Waiver approved - but just charged with a crime after

I don't think petty theft would fall into this category - but you need to make your own call.

Theft, no matter how petty, is considered by the US Government as a crime involving moral turpitude. Its up to the US Government to make the determination (which they have done) and not up to the traveller to make the determination as to whether or not a crime involved moral turpitude.

 

[markis10]

Re: USA Visa Waiver approved - but just charged with a crime after

Incorrect. If you are charged with an offence, and by charged I mean you have your fingerprints taken etc at a Police Station, you are technically arrested for the purpose of giving Police the power to hold you without your permission for the purpose of charging and then your are bailed. Until such time as you are bailed, or issued with a Court Attendence Notice (NSW) you are still in custody. On the other hand, if you are summonsed to appear at Court then you are not arrested, even though it could be for a criminal matter.

Not sure how a question can be incorrect, I was not making a statement but asking if its possible to be charged without being arrested in the context of the waiver questions, which from a NSW context you have answered very nicely, not sure if it differs elsewhere as far as other states go.

 

[wintersnow88]

Us vwp

I recently went for a 2 week holiday to the US on the 18th of August and returned home directly to Australia. I was only able to stay for 2 weeks last time but now I'm in a position to stay for longer, maybe 6 to 8 weeks and I have a few concerns. Do you think I'll have any issues on re-entry and will I be readmitted on my first entrys VWP 90 day admission period which ends on the 16th of November or be given a new 90 day admission period. Please help, dont want to waste my money or be denyed entry to the country making it difficult to enter in the furture.

 

[drron]

Re: Us vwp

No problems at all.We are often back before the 90 day period ends.They will start a new 90 day period.I presume you have signed up with the ESTA program-reentrys will be OK for 2 years.

 

[dk4]

Re: Us vwp

... I'm in a position to stay for longer, maybe 6 to 8 weeks and I have a few concerns.

There are many different routes that a CBP officer may take... If your last trip was your first ever visit (or first after not visiting for a while) then my guess is that the most likely starting position, will be to ask "why are you returning so soon?" & "why don't you know exactly how long you are planning to stay?"