Criminal record and obtaining a US visa

[marco32]

Hi all,

Just looking to get some feedback if anyone with a criminal record has actually managed to get a visa for the US.

Reading tons of posts on here about the VWP / ESTA / ineligability etc it seems as though if you tick Yes to question B they pretty much deny a visa at the interview and then a waiver has to be requested from DHS. There is not a lot of information regarding people that have ended up getting a visa after this process.

My situation is that I have 12 relatively minor convictions (although 1 was for drugs) from 12 years ago. I am due to fly out in March next year and undecided if I should do the right thing or just wing it.

If anyone has any experience / info on the whole criminal record / visa process, it would be greatly appreicated.

Thanks.

 

[serfty]

Welcome to FT

If the offences were not of a 'sexual nature' and did not result in a jail term of six months or more (differs between the various state & Federal laws), the convictions becomes "Passed" or "Spent" after 10 years.

Current Legislation does not deal with any request for disclosure that a foreign government might make, except that the Australian government should not pass on information about someone's "spent" conviction(s).

 

[serfty]

What to Do?

This post probably explains it better than I can ...

http://www.frequentflyer.com.au/com...waiver-program-question-14757.html#post193042

I would employ the electronic application and answer as suggested.

 

[TanyaGordon]

My flatmate has just jumped through all the hoops and secured his visa.
Here's what he did;
Fill in lots of forms
Book an appointment with the US Embassy
Pre-Pay the US Embassy $130 prior to appointment (admin fees)
Go to interview
Wait

He had a DUI charge and lost his licence for 1 month, 8 years ago.
Although he has now obtained a touring artist visa, which means he can get paid while he is there.

It really depends on the charge, the visa you want, and also if you are male or female.

 

[marco32]

Thanks for you replies.

Well, I managed to get my police certificate after a couple of weeks. I requested 2 copies - one I ticked for Visa application and the other I ticked for Personal Use.

On the Personal Use copy it shows the 12 convictions as expected, the last being Dec 1996. On the Visa copy it doesn't show anything, indicating that the convictions have been spent.

Now I just need to decide on my approach. If anyone has any experience of similar nature, your knowledge would be greatly appreciated. Feel free to PM me if you would prefer to keep it private.

Many thanks.

 

[High Horse]

My sister, being a very vague teenager, overstayed her US visa twice. When she departed last time, she was told that she could not reenter for 5 (or 10?) years.

Being a very conservative 30 something now, she still flew to Sydney for a preapproved tourist visa (as a pp suggested) as she figured that was a cheaper way of finding out if everything would be ok.

 

[Dougo]

Thanks for you replies.

Well, I managed to get my police certificate after a couple of weeks. I requested 2 copies - one I ticked for Visa application and the other I ticked for Personal Use.

On the Personal Use copy it shows the 12 convictions as expected, the last being Dec 1996. On the Visa copy it doesn't show anything, indicating that the convictions have been spent.

Now I just need to decide on my approach. If anyone has any experience of similar nature, your knowledge would be greatly appreciated. Feel free to PM me if you would prefer to keep it private.

Many thanks.

I would still err on the side of caution as the US officials are still very much security minded having arrived back home from the States 2 days ago and having been singled out for a Special Security check with ALL of our internal (US) flights. And our checked bags were inspected too - tho' I suspect that some missing articles (of a minor nature) were the result of the baggage handlers rather than security staff. Bottom line - use TSA approved locks on EVERYTHING that opens and shuts.

I think you would be best going to the US Consul and laying all your cards on the table. Even though your documents indicate your conviction is spent, you should tell them as they would want to know. Better to do that and get approval to enter the US than to wing it and get deported at the airport in the US. I think there is a requirement from early 2009 for everyone to apply for entry on line - ask the Consul staff when you have your appointment.

Finally, before we left OZ in Sept this year, I did ring and pay to speak to a US Consul staff member about a visa and they asked several times whether or not I had convictions (I don't) and they seemed to be interested in finding out about everything.

 

[TBrennan]

Hi All,

Quick question. I have applied for a visa to go to the US in June. I have 2 worries. Firstly, I have a finding of guilt (no conviction) from 9 years ago. It is a very minor charge and all I got was a fine. I have read heaps and heaps of conjecture about a yes or no answer. I'm just hoping that since it was so long ago that it doesn't become an issue.

Secondly, I was in the US in 2006 and I entered under the VWP. I'm worried that this will be counted against me, as I didn't apply for a visa the last time. I didn't even know I needed one back then, so it wasn't a deliberate action.

Any thoughts on how this might go down? I have my appointment in Melbourne on Wednesday and I'm freaking out. I'll be permanently heartbroken if I'm denied.

Thanks...

 

[Dougo]

I understand your worry, but you may be worrying over nothing. All you can do is go to the interview, be honest in every answer - no point in being otherwise - and hope that they will let you in.

You could ask the question - if they don't let you in, is any avenue for appeal or if you will be forever denied a visa? That way at least you'll know what you can and can't do.

Good luck.

 

[caggs]

This is the question you are asked on the VWP form:

B) 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 entry to engage in criminal or immoral activities?

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.
For further information refer to § 212(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2), § 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and corresponding regulations in the Code of Federal Regulations.



Hope this helps

 

[TomCruise]

Take at look at this thread:

http://www.frequentflyer.com.au/com...stoms/visa-waiver-program-to-usa-6431-24.html

I have just posted a lot of information regarding findings of guilt with no conviction and spent convictions. Although it is regarding NSW you would be able to find the same relative legislation for your state which would be similar.

In short a finding of guilt becomes spent as soon as any fine or penalty (Good Behaviour Bond) is complete. Any other conviction becomes spent after 10 years of crime free period, from the last conviction. Some convictions however are excluded. I.e ones of sexual nature or involving minors. One a conviction is spent you do not have to disclose it to ANYONE and it no longer forms part of your criminal record. Although the act in NSW does not cover arrests, someone can still legally ask you about being arrested. You may choose to disclose it even though there is no way for them to find out unless having access to your criminal history. This is different to your criminal record and foreign agencies do not have access to this.

As to the previous poster:

You travelled to the US in 2006 without a problem. If your online ESTA says you are approved to travel I would not worry about the visa as in all honestly your chances of getting one are probably not great.

If you go off the Australian Traveller guide to travelling to the USA it says:

"Australians with a criminal record (regardless of how minor or how long ago the offence took place) should ensure they seek advice about their visa requirements for entering or transiting the United States as they may be refused entry."

You had a finding of guilt, which does not form part of your criminal record, therefore you should not be required to seek advice from the consulate.

The website also has a frequently asked question that asks:

I was arrested/convicted of a crime years ago. Can I use the VWP?

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. If you have been arrested for or charged with a crime, including offences involving drink driving or the use of a controlled substance, you may require a U.S. visa and, in some cases, a waiver of ineligibility. 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.

It says the system will advise you whether you MUST visit the embassy. If you fill out the ESTA and tick no to all the questions and If the ESTA says you are authorised to travel then IMO there shouldnt be a problem.

As to the OP your arrests are going to be the problem. I cannot say you are legally allowed to answer no to the question as the act does not cover arrests. It is up to you whether or not you disclose it. I can however say that you have a clean criminal record, therefore to effect you do not have a criminal record as all your convictions are spent. As per this and as per the Australian Travel guide you are fine to travel. As I said before your arrests form part of your criminal history, as do your spent convictions and foreign agencies do not have access to your criminal history.

This just my opninion from the research I have done regarding this topic. Do not take it as fact.

The USA of course would love to know everything about you. Especially information they cannot legally obtain without you disclosing it to them.

 

[zetski210]

Hello,

it's been a while since I posted here, but I have a criminal record in Australia and managed to successfully obtain a visa to enter the USA as either a tourist or for business.

I have four charges, acquired when I was nearly 19 (I am now 28), and technically only 2 or 3 are "moral turpitude". Essentially theft related, but nothing major - just one of those stupid things you do as a teenager!

I was invited to present some research at a conference in LA last November, but upon registering my details at the Visa Waiver website, I ticked "yes" to the arrest question, starting the whole interview process.

First, I had to obtain a criminal history from the police, which took about 3 weeks. Then go to the visa interview which took all morning (well, the interview only took about 5 mins, but the waiting around and security sceening took all morning...). I took with me supporting documents from my employer, the conference chairperson, my research supervisor, but none of that was of any interest to the consulate. All they cared about was my criminal record.

The informed me that my application for a visa was denied and they would send off to Washington (DHS) to apply for a waiver. The held my passport and told me to go home and wait.....

So wait I did..... I waited until two days before my flights (3 weeks after the interview) and called the expensive consulate number only to hear that they could not update me on the progress of my case. After calling a number of times over the next day, I finally managed to find out that my waiver had been approved and I could obtain a visa. It just needed to be printed.

Over the next couple of days, I literally waited by my front door for a courier and delayed my flight each day the courier failed to arrive. Eventually, it was too late to fly out and I had to cancel my flights and accommodation.

Finally, about 5 weeks after the interview, my passport arrived with a visa valid until this August, so 6 months or so.

Upon doing a bit more research, it turns out that each time I want to fly to the US, I think I need to go for an interview again. someone said that I may be able to get a 5 year visa, but I haven't looked into that yet.

All I can say to anyone who goes through this process, is Good Luck and just be patient.

 

[straitman]

All I can say to anyone who goes through this process, is Good Luck and just be patient.

.... and start the process early.

 

[stevemilo]

Did you end up getting your visa Marco32? Did you apply for one? Let me know.

 

[nasak]

Hi Guys

Ive got a quick question that hopefully someone can help me with. I was charged with a minor theft charge about 5 years ago. After seeing if i would be eligible for the Visa Waiver i ticked box about criminal convictions and was denied. Ive been instructed to apply for a visa via the consulate. In anyones experience would i have any issues in obtaining a visa and if i do, how long are they valid for.
THanks in advance

 

[stevemilo]

Hi Guys

Ive got a quick question that hopefully someone can help me with. I was charged with a minor theft charge about 5 years ago. After seeing if i would be eligible for the Visa Waiver i ticked box about criminal convictions and was denied. Ive been instructed to apply for a visa via the consulate. In anyones experience would i have any issues in obtaining a visa and if i do, how long are they valid for.
THanks in advance

If it's been over 5 years since the court date you should be fine. As long as 5 years is up then they will accept your application. Let me know how you go!

 

[nasak]

Thanks for that. Ill start the process soon. We are not looking at travelling for another 12 months. Ill let you know how i go. Thanks again

 

[stevemilo]

Thanks for that. Ill start the process soon. We are not looking at travelling for another 12 months. Ill let you know how i go. Thanks again

Yes, that would be great. Good luck!

 

[zetski210]

If it's been over 5 years since the court date you should be fine. As long as 5 years is up then they will accept your application. Let me know how you go!

As long as the crimes were not major and you were not convicted, you will be able to get a VISA, but you will always need one to enter the US (unless the change their laws).

You can pay extra and get a 5 year VISA though

 

[stevemilo]

As long as the crimes were not major and you were not convicted, you will be able to get a VISA, but you will always need one to enter the US (unless the change their laws).

You can pay extra and get a 5 year VISA though

It doesn't matter how small or big the crime is, you still have to wait the 5 years and even if you were convicted of the crime, you can still try to apply for a visa after 5 years. Of course if you were not convicted then you do not have to wait 5 years, but any convcition, recorded or not recorded, you still need to wait the 5 year ban unless they tell you otherwise when you go for your interview (depending on the circumstances)