VISA Waiver Program to USA

[Mal]

I know someone who has a charge, who was told by the US embassy that it constituted moral turpitude and made him ineligible for the VWP, even though in the linked file this charge is specifically listed as being an exclusion.

I wonder if the US embassies have a habit of concluding something is moral turpitude when their own rule book states that it is not?

The issue is does a visitor to the U.S hide their past, or do they do the right thing and own up to their previous history and get a visa.

If they own up, then they are liable to either be denied a visa or be drawn into an expensive legal battle to get the right to visit the U.S.

If they don't, they risk being denied entry and sent home.

Interesting choices for someone who cannot answer the VWP questions in the required manner for the U.S authorities.

 

[LondonGenie]

The issue is does a visitor to the U.S hide their past, or do they do the right thing and own up to their previous history and get a visa.

If they own up, then they are liable to either be denied a visa or be drawn into an expensive legal battle to get the right to visit the U.S.

Hi Mal,

I see many posts on other BB's on the topic of the VWP/US visas and it seems to quite a common belief, that anyone who has committed any crime is ineligible for the VWP and/or a visa. This is not true.

In the case of moral turpitude, if you have not committed it, you are not 'hiding your past' by ticking the appropriate box on the visa waiver form.

The previously linked Foreign Affairs manual lists a multitude of 'minor' crimes that do not constitute moral turpitude.
http://foia.state.gov/masterdocs/09fam/0940021aN.pdf
Or if you want the definitive position you can read the statute here... Classes of Aliens Ineligible to Receive Visas
See Section 212(a)2

Cheers!

 

[NM]

In the case of moral turpitude, if you have not committed it, you are not 'hiding your past' by ticking the appropriate box on the visa waiver form.

Not quite ... you don't have to have committed the offence. Just being arrested for for an offence or crime involving moral turpitude requires acknowledgement in the affirmative on the I94W Visa Waiver form. So even if you are later found to have no committed the offence or crime, or if dismissed by a court, if you were arrested for it then you are technically ineligible for the Visa Waiver Program and need to apply for a Visa.

 

[LondonGenie]

Hi NM,

Yes I agree, you are quite right. My fault in trying to summarise a lengthy manual, applicable in one particular case.

For the Visa Waiver, arrest (and yet no conviction) is to all and intents and purposes exactly as declarable as a conviction. I still have no concept of this Aussie thing of crimes being 'forgiven'. But if you are brought up on a charge, and the judge penalises you in any way, you are presumed guilty of that charge per this US statute (this would seem to cover the Aussie situation?).

(Thanks for putting me right there)

Cheers!

p.s. But I have to say this still does not appear to make what this subject man did, a case of moral turpitude. On the face of it, he still could have entered on the VWP...

 

[Dave Noble]

p.s. But I have to say this still does not appear to make what this subject man did, a case of moral turpitude. On the face of it, he still could have entered on the VWP...

The person stole a fork lift truck.

In the list in the pdf , it includes in 9(b) ( Other crimes committed against property involving moral turpitude involve an inherently evil intent, such as the act of arson. The following list comprises crimes frequently committed against property, which may be held to involve moral turpitude for the purposes of visa issuance: )

(9) Larceny (grand or petty);

The person was charged and found guilty of theft and so would seem to quite validly ineligable for access under a visa waiver. If he had been charged with illegally use of a motor vehicle, then that would seem to have the likelihood to be classed as joyriding and so not an issue

Dave

Dave

 

[Maca44]

The person stole a fork lift truck.

The person was charged and found guilty of theft and so would seem to quite validly ineligable for access under a visa waiver. If he had been charged with illegally use of a motor vehicle, then that would seem to have the likelihood to be classed as joyriding and so not an issue

Not quite correct. He was charged, went before a Magistrate, but the Magistrate did not record a conviction and he was placed on a 6 month bond. I suppose the bottom line is that this occurred some months ago now, the person involved change his trip, went through Canada and had a great honeymoon. For those who have travelled through both Canada and the USA I think the US Embassy did him a favour.

 

[Dave Noble]

Not quite correct. He was charged, went before a Magistrate, but the Magistrate did not record a conviction and he was placed on a 6 month bond. I suppose the bottom line is that this occurred some months ago now, the person involved change his trip, went through Canada and had a great honeymoon. For those who have travelled through both Canada and the USA I think the US Embassy did him a favour.

He was arrested and charged and the case was proven (which to me I see as found guilty, though maybe there is a technical difference). the fact that Australia has a strange idea of not recording convictions depending on the whim of the judiciary doesn't matter in the case though does it. I suspect that it is due to some places having such ideas that the US specificially refers to arrest rather than conviction to avoid a loophole

Dave

 

[Soundguy]

It's funny that the Estonian multi-millionaire inventer of Sykpe is barred from visiting the US (doesn't meet their visa requirements), yet Ebay have bought his company. When they need to meet the Ebay execs fly to London and they hold all their meetings there.

The American government doesnt really want people to visit their country; granting access or visas is viewed as them doing you a favour. An 80+ year old Australian lady I know well was interrogated for a long period because she returned to the US for a funeral only about 3 months after she had previously visited. The authorities there did not regard this as a valid reason to visit the coutry again so soon. When an old lady who is nearly deaf and has never commited so much as a driving offence in her whole life is considered a threat you know they have lost it.....

 

[mainly tailfirst]

It's funny that the Estonian multi-millionaire inventer of Sykpe is barred from visiting the US (doesn't meet their visa requirements), yet Ebay have bought his company. When they need to meet the Ebay execs fly to London and they hold all their meetings there.

ROTFL. Oh, to be so important as to be vital to an American company but deemed undesireable to the US Govt.

The American government doesnt really want people to visit their country; granting access or visas is viewed as them doing you a favour. An 80+ year old Australian lady I know well was interrogated for a long period because she returned to the US for a funeral only about 3 months after she had previously visited. The authorities there did not regard this as a valid reason to visit the coutry again so soon. When an old lady who is nearly deaf and has never commited so much as a driving offence in her whole life is considered a threat you know they have lost it.....

I wholehartedly agree with this one. They really have lost the plot. I find the INS slogan "Secure Borders, Open Doors." to be almost laughable at times - more like "Leaky Borders (to the Determined), Watch out we don't slam your foot in the Door (to everyone else.)"
Even pre-Sep11 they weren't really that accomodating. When visiting an Uncle in Seatle in 95, my folks were put through the wringer simply because they could not recall his exact home address. The statement of, "Well, we don't have the exact address on us since he's picking us up" just served to get them a lecture about being poorly planned travellers.

Right now, the attitude seems to be: "Well, we know you *have* to come here as we are the centre of the universe, so you'll put up with anything". If the US is not careful, they may find in 20 years that people simply stop going there as there are other places (e.g. China) that people *have* to go to for business and the US becomes less relevant.

mt

 

[LondonGenie]

Ok ok, I give up!

I had it in my mind the incident had been described as 'joyriding'. Anyway... onwards and upwards.

I hope however that the linked manual and statute will help some people in future determine whether or not they can use the VWP. As I mentioned, I frequently see people on other travel websites worrying that they cannot use the VWP, because of some really minor things (speeding for example). Too often the advice they get back is along the lines of 'if in any doubt apply for a visa'.

I too have been through the grillings on arrival in the US, and the 'joy' of applying for a visa. So, I think an examination and debate (as in here) about which path to go down if you are going to the US is great.

 

[haroldzenner]

In my case I am 69 years old. When I was 20 (1958) I was arrested and fingerprinted in Victoria for theft with a number of other guys, but as I wasn't involved in the crime at all, my case was dismissed by the magistrate (some of the others received good behaviour bonds as their cases were proven).

Under the Victorian Crimes Act, when a person is arrested and fingerprinted and subsequently found not guilty the fingerprints must be destroyed.

The risk for me (I am visiting the US next month) is that the law wasn't followed and that my fingerprints are still on file after 49 years. However it's too late to apply for a visa and I'm going to answer No to the arrest question and take my chances. I reckon the odds are probably in my favour, but I risk losing the cost of the trip for myself and my wife (quite an expensive trip as it happens) if my dark past is discovered and I'm deported. I might add that I discovered the "arrest" rule only recently. My belief until very recently was that only convictions counted. Many travel agencies don't spell out that detail and I'd be extremely surprised if the average tourist knew about it.

I'll let you know how I get on, but I'd appreciate hearing from other people who have successfully taken a similar risk and what their experiences were.

 

[LondonGenie]

Mundane criminal records are not attached to airline passenger
manifests. The USCIS does not request criminal checks on all passengers
from UK authorities, nor does the UK volunteer them. Perhaps it is similar in Australia?

The US and the UK share information regarding high level targets such as suspected terrorists. They are not sending each other lists of people who have pinched a loaf of bread.

I am not an expert, but I will happily suggest that on the whole these things go completely unnoticed until someone does something like file for an immigration benefit such as an adjustment of status.

Here is what the visa waiver form looks like...
Sample I-94W Nonimmigrant Visa Waiver Arrival/Departure Form


[For anyone interested, here is the visa application form...
https://evisaforms.state.gov/ds156.asp]

p.s. presumably your screen name is not your real name.

 

[serfty]

In my case I am 69 years old. When I was 20 (1958) I was arrested and fingerprinted in Victoria for theft with a number of other guys, but as I wasn't involved in the crime at all, my case was dismissed by the magistrate (some of the others received good behaviour bonds as their cases were proven). ...

G'day haroldzenner, welcome to AFF.

This post can not be construed as professional legal advice...

.. but see previous posts in this thread in regard to "Spent" or "Passed" Convictions; also look here: Fingerprinting and photo when entering USA). .

I know of at least two people who regularly visit the US who had some "issues" -one in the 60's and the other in the 80's. Both simply answer no. In reality if you have 10+ years of keeping your nose clean the Oz Government may not legally pass this type of information to another entity - you should be fine.

 

[JohnK]

Here is what the visa waiver form looks like...
Sample I-94W Nonimmigrant Visa Waiver Arrival/Departure Form

Is the actual I-94W similar to this sample? More importantly is this question worded the same?

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

 

[NM]

Is the actual I-94W similar to this sample? More importantly is this question worded the same?

The exact wording is as follows. Note this is question B out of those labelled A through G.

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

 

[simongr]

It looks the same and Ithink that the question is the same -I dont bother to read it - just hit "no" - luckily I haven't been caught... I mean arrested before

 

[LondonGenie]

Is the actual I-94W similar to this sample? More importantly is this question worded the same?

Is the actual form, similar to the picture of the actual form that I posted?

Heh?

 

[JohnK]

So going back to a point I raised a while back where someone has only ever been arrested once, for drink driving, and not sentenced to jail.

Am I correct in saying that the I-94W does not require an answer for this type of offence?

 

[NM]

Is the actual form, similar to the picture of the actual form that I posted?

Heh?

When I compare the actual I94W form I have here with the one posted, I see several differences:

• The "Admission Number" is different
• Mine does not have personal details already filling in for someone from Japan
• Mine is a slightly darker shade of green

 

[serfty]

So going back to a point I raised a while back where someone has only ever been arrested once, for drink driving, and not sentenced to jail.

Am I correct in saying that the I-94W does not require an answer for this type of offence?

I would say the correct answer is "no" in this case, given my interpretation I posted here:

http://www.frequentflyer.com.au/community/81862-55-post.html