VISA Waiver Program to USA

[Maca44]

Thanks to all who replied previously, and as an update after being refused an visa to enter the USA he persisted and managed to contact someone in the US Consulate General office, and when he explained his situation that he was never convicted of any offence, and they looked into his application file he was advised that the reviewing officer was completely off track; that she should not have declined the application, and he should not have been denied the visa pursuant to the section she indicated on the form. The US Embassy is to review the application and he has to contact them back in a couple of weeks for the result. Although he is cautious, after speaking with the two people at the consulate who appeared to know a lot more than the reviewing officer, he is now slightly more confident that it will go through okay.

I will keep you posted because I can only imagine there are adults who might have got caught shoplifting when they were children, and they would be in the same situation of this guy.

 

[JohnK]

It make me wonder about the many people who have been charged with shoplifting, even as a child etc. Would they be in the same predicament.

No adult criminal record as the record is wiped clean when you turn 18 if you were charged with shoplifting as a minor, unless off course you were a repeat offender.

 

[Maca44]

It make me wonder about the many people who have been charged with shoplifting, even as a child etc. Would they be in the same predicament.

No adult criminal record as the record is wiped clean when you turn 18 if you were charged with shoplifting as a minor, unless off course you were a repeat offender.

JohnK, with my experience of over 35 years in law I can assure you that if you are charged with a criminal offence as a juvenile and you are later charged with a criminal offence as an adult, when your matter goes before the Court and your criminal record is presented to the Magistrate prior to you being sentence, your juvenile conviction is still on record and "may" be taken into account when you are sentenced on the latter charge.

 

[Maca44]

It make me wonder about the many people who have been charged with shoplifting, even as a child etc. Would they be in the same predicament.

No adult criminal record as the record is wiped clean when you turn 18 if you were charged with shoplifting as a minor, unless off course you were a repeat offender.

JohnK, with my experience of over 35 years in law I can assure you that if you are charged with a criminal offence as a juvenile and you are later charged with a criminal offence as an adult, when your matter goes before the Court and your criminal record is presented to the Magistrate prior to you being sentence, your juvenile conviction is still on record and "may" be taken into account when you are sentenced on the latter charge.

 

[JohnK]

JohnK, with my experience of over 35 years in law I can assure you that if you are charged with a criminal offence as a juvenile and you are later charged with a criminal offence as an adult, when your matter goes before the Court and your criminal record is presented to the Magistrate prior to you being sentence, your juvenile conviction is still on record and "may" be taken into account when you are sentenced on the latter charge.

I was led to believe that your slate was wiped clean, unless you are a repeat offender, and any charges as a juvenile would not be used in a trial as an adult.

You seem to know more about law so I guess you are right. Does it depend on the severity of the crime committed? Shoplifting, car theft, assault, manslaughter, rape, murder.

 

[Maca44]

Deleted...duplicate message

 

[Maca44]

No John, your slate is never wiped clean. A few years back I did a search on my father who passed away in 1973. I was aware he was charged with drink drive PCA because I bailed him out, and although he has been gone for many years I am sure he would get a laugh out of knowing that his criminal record is still current.

It does not depend on the severity of the crime as all criminal charges preferred either as a juvenile or adult remain on your record. I am not sure, but I seem to recall something about your criminal record remaining on file for 99 years. It is irrespective whether a person is charged with shoplifting, car theft, assault, manslaughter, rape, murder etc, they are still criminal matters and remain on your record, even serious traffic matters such as PCA. Essentially, anything you get fingerprinted for remains on record.

 

[thadocta]

For further information on this (NSW only) refer to the Criminal Records Act 1991.

Dave

 

[mike307]

Can someone please assist with this question. My friend's 23 year old son is getting married in May 06, and has booked an around the world honeymoon with his last stop being from FRA via JFK to LAX, then Hawaii for a few days before returning to Sydney. All up, about 5 weeks.

About four years ago, after a couple of drinks and on his way home, he took a forklift (which he didn't own) for a drive around the footpath and struck a wall causing minor damage. However, as there was damage of about $600 to the wall the the machine he was charged with stealing a motor vehicle in lieu of illegally use a motor vehicle. Due to the minor nature of the incident, when he went to court the offence was 'proved' but the magistrate did not record a conviction and he was placed on a 6 month bond.

Now the problem starts. As he was arrested, (not convicted), he did the right thing as per the Visa Waiver procedures and applied for a visa to enter USA. However, when he went to the Sydney office of the American Consulate today they refused him a visa citing that he had been charged with an offense of "Moral Turpitude", which I thought only involved someone throwing a phone in a hotel, anyway..

Does anyone know what can be done now, what his rights of appeal are, or even if he has any rights in that regard. I suggested he could always travel via Toronto, then Vancouver and spend some time in the rockies, but he wants to do the American thing. Any advice please would be greatly appreciated.

I actually don't get the point of it all.
I mean if a person were guilty of any of those offences, surely they'd tick NO and keep their mouth shut and slip in unnoticed.
The US wouldnt have any way of checking Australian records would they?

I had something like this happen to me. In my case i used a ladder to get to the roof to enjoy the view. All i did was move a ladder 3 metres, never took it out of the yard but they say i stole it. Same thing, guilty but without conviction. Anyway... I didn't know if i should apply for a visa here or take a chance. I took a chance. I booked a flight and a hotel but didn't prebook anything else in case they sent me home on the first plane out. I ticked no for everything and i got in OK.

Before i made my choice i did some research and read all the information i could find. I'm not sure about other states but in Victoria you can get a form from any police station which you fill in and you get your record. It costs about $120 if i remember right. On the form it gives you 5 or 6 choices of what you want the record for and if Victoria police will disclose information to your choice. Visa was one of the choices. It took about 3 weeks in the mail and when the letter came it said for a visa application i had a clean record. So i was 99% sure there was no way the Americans could find out about my past.

Anyway good luck to your friend Macca

 

[Maca44]

Well, as an update to my friends predicament.

As requested by the American Consulate my friend recently contacted their Sydney office as they were going to review his visa application, however, it was told that as the determination to refuse a visa had been made by a senior officer in that section they were not prepared to reverse her decision and he was told to reapply for a visa in 12 months. This doesn't help when he is getting married in May.

It was then necessary for him to change his travel arrangements at at cost of $600 for him and his fiancee ($600 each) and rebook a different routing there by avoiding the USA. Another lesson for young players is don't book your flights until you have all the necessary paperwork in place.

When he asked the Reviewing officer what would happen if Americans with no convictions were refused a visa/entry into Australia, adding that he thought it was discrimitary towards Australians the officer simply told him that he didn't like his attitude and that after that comment he should not consider applying for another 5 years. It doesn't worry him that this might happen as he never intends going to the USA in any event, and he is going to Disneyland in HKG. A good lesson for those who consider being smart to the US Visa Section, don't do it. He does concede that he was quite angry so he deserves what he gets. Always be nice to people you want something from, albeit you review had already been decided by that time.

It is quite dissappointing that the US visa system is like this, especially when no conviction has been recorded and again I wonder about people who have been charged with shoplifting, as they will be in the same position.

 

[Skyring]

The point about attitude is well made. Never in any traveller's interests to piss off junior officials. Not unless you know exactly what you are doing.

I'd like to see some actual case law on this, as opposed to what various officials decided on the spot. My feeling is that this whole "moral turpitude" thing is capable of almost infinite interpretation.

The spent convictions act would seem to rule out old shoplifting offences being used to deny entry. It is Australian law, and if convictions under Australian law are being used to deny entry, then the effect of a spent conviction is that after a certain amount of time it cannot be held against you. If you have been convicted in a different nation, then this wouldn't cover you, of course.

I'm guessing here, but my feeling is that if you are comfortable ignoring spent convictions and minor crimes that don't involve "moral turpitude" then you should not declare them. It is unlikely that you will be datamatched against something that happened ten years ago especially if the effect of the legislation is that these convictions are not included in official reports provided to foreign powers.

Attitude is everything, and if you are pulled up at immigration and you honestly believe that whatever old and/or minor crimes you committed don't warrant reporting, then I think that this would count with immigration officials.

Having said that, I wouldn't advise this approach if you have a definite history of crime involving drugs, fraud and/or theft.

 

[Dave Noble]

Regardless of whether it is "recorded" or not, the offence was committed. He mentioned about their attitude being discriminatory; I would say that there would be discrimination if they ignored the offence, since ime , most countries do not have the concept of pretending convictions did not occur

Agree that it is definately not a good idea to try and annoy those whose assistance you need

Dave

 

[Skyring]

If the conviction under Australian law is spent by virtue of Australian law, then can it be honestly said to have been committed, from a legal point of view? There seems to be a certain amount of retrospectivity at work here.

However, this US page states otherwise.

I tend to regard web pages as being akin to advice from officials - they don't have a guarantee of being correct, but they are certainly not to be disregarded lightly. I'd like to see actual court decisions on this.

Naturally the US (or any other country) would prefer that you gave them as much information as possible, even if you don't legally have to do it.

Having said that, the effect when planning travel or actually standing at the immigration gate could be huge and costly disruption, regardless of what a court might say months or years down the track.

For those travellers with minor arrests or convictions, there seem to be three options.
1. Avoid the USA entirely.
2. Go through the tedious process of interviews, forms and hunting up court records to get a visa. Advice or assistance of a specialist consultant is invaluable here.
3. Take the postion that if the arrests or convictions are not reportable, then the USA isn't going to be told about them, and you'll be admitted without fuss.

You've got to wonder just how far this all goes anyway. Sir Paul McCartney has been arrested on drug charges and he seems to have no trouble getting into the USA.[/url]

 

[Maca44]

The US Customs & Board Protection on the following webpage states:
http://help.customs.gov/cgi-bin/cus...F9wdj0mcF9jdj0mcF9wYWdlPTI*&p_li=&p_topview=1

There are many reasons for a person to be denied entry into the U.S. The most obvious are if a person is suspected of having ties to terrorist or criminal organizations. But there are many more reasons for persons to be excluded from the U.S. Among them are having been found guilty of crimes of moral turpetude (Child molestation, rape, fraud, theft, etc.), having been found guilty of a criminal offense (for instance murder or grand theft), having overstayed a previous visit to the U.S., or if the visitor is suspected of having an infectious disease. (it then continues....)

This page only relates to convictions (not charge as in other govt pages), so the confusion continues.. Anyway, it doesn't matter any more because as mentioned in my previous post he has changed the routing for his honeymoon and not going to the USA. Why is it that some of the nicest yanks you meet are in their home country of American, and not when they are in Australia. Apart from LA which is a place you should only visit to change flights, I have a great time in the States and the people are great also.

 

[serfty]

One could argue that he was admitting to moral turpitude based on his application since the I94W asks

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking to engage in criminal or immoral activities ...

I was filling one of these in last week and had a very close look at it. I considered the use of the semi-colons and have come to the conclusion there are four questions rolled into the one sentence, not five.

i.e.

...Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; ...

I read the as meaning "Have you ever been <in trouble activitiy/s> related to a controlled substance;

... or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; ...

or been <been such a bad person that you have more than one bit of trouble and the aggregate sentencing for these was for>five years or more; ...

... or been a controlled substance trafficker; ...

<dealt in drugs illegally>

... or are you seeking to engage in criminal or immoral activities ...

<are lookin for trouble>.

If this is the correct interpretation, the question is not well written.

 

[Bradd_N]

I was filling one of these in last week and had a very close look at it. I considered the use of the semi-colons and have come to the conclusion there are four questions rolled into the one sentence, not five.

i.e. I read the as meaning "Have you ever been <in trouble activitiy/s> related to a controlled substance;
or been <been such a bad person that you have more than one bit of trouble and the aggregate sentencing for these was for>five years or more; ...
<dealt in drugs illegally>
<are lookin for trouble>.

If this is the correct interpretation, the question is not well written.

It`s LOL

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[thatwouldbher]

Hi everyone.. withe regard to the visa waiver program to enter the USA, if you have any skeletons I wouldnt even try to enter the USA as you will be turned around at the airport and deported to your country of citizenship.

Before you even enter the USA now your history arrives before you do.

I had a friend arrive into LAX on aug 31st to find because he had appeared in court and there was no conviction recorded 3 years ago, he assumed he could enter the USA under the visa waiver program. He was soooo wrong. He was taken aside at LAX spent the day "in custody" and deported back to Australia that night. He was able to actually ring me to advise not to pick him up at the airport etc and what had happened. I contacted an immigration attorney by phone, in Cleveland and she advised there was absolutely nothing she could do for him.

I think I would be rerouting my ticket through Canada under these circumstances.

We can also thank the terrorists for our history arriving into the USA be we do these days!!!

 

[Dave Noble]

I had a friend arrive into LAX on aug 31st to find because he had appeared in court and there was no conviction recorded 3 years ago, he assumed he could enter the USA under the visa waiver program. He was soooo wrong.

It does ask whether you have been "Arrested or Convicted" . It is unlikely to have appeared in court without having been arrested so cannot see why he would assume he could enter under the visa waiver programme

Dave

 

[Skyring]

It does ask whether you have been "Arrested or Convicted" . It is unlikely to have appeared in court without having been arrested so cannot see why he would assume he could enter under the visa waiver programme.

Well, no, you don't have to be arrested to be charged with a crime. If it's on summons and you beat the charge you should be OK.

 

[serfty]

AFAIK, you need to have been such a bad person that you have had two or more offences for which spent more than five years in confinement/jail before you would need to answer to the affirmative.

I would guess your friend gave an incorrect answer.

See my post above: I94W breakdown