Lying on US VWP app - criminal record data matching

[sebjac]

My partner has a 6 months old criminal record of Larceny and Entering with Intent to Commit. These are clearly crimes of moral turpitude. She was silly enough not to appeal, as she is innocent. She has a 2 year good behaviour bond. The convictions are on her Australian police certificate.

I've read with much interest the whole criminal record and VWP/Visas on many forums.

From what it seems, if she wants to go to the US
- She could for VWP honestly and be denied
- She would need to apply for a visa. There is high chance of rejection, and answer would take approx 6 months
- If rejected, even in the future, they would have record of her conviction, and would never be able to use the VWP, and always need to apply for visa.

She could however wait for 10 years, and then lie on her VWP application. If current policies regarding spent criminal convictions stay the same, it seems like there is no chance of her being caught lying.

However, my question is, if she applied for VWP now and lied on her application, what is the chance of being caught? She has rather common name. I have yet to found concrete examples of people being caught out. Are there recently cases of people getting away with it?

Furthermore, what do you reckon the chance of being caught out if she lied on her VWP, but used her Euro passport, and said her home address is with her relies in Europe?


I am fully aware of the potential consequences of what would happen if she was caught (ie impossible to enter USA in the future/unpleasant LAX experience/bad karma/potentially but unlikely something worse). Im not interested about discussing this. There are plenty of threads discussing this. My questions are regarding the chances of successfully lying..

Cheers for any info

Seb

 

[anat0l]

Sorry mate, I can't recommend you trying at all.

Of course there will always be a chance of you getting caught, but just because there's a chance of not being caught doesn't mean that you should try and lie and do it. What could possibly justify such an action being contemplated? You would need a reason much more than "I want to go to the USA for a vacation" to even think of doing what you're thinking of doing, and I'm at a loss to think of any reason at all! The consequences of lying and getting caught more than outweigh the chance of not getting caught. In short, even if the probability is low of getting caught, the consequences of lying are very high, so multiplying those two together in my books the risk is just too high.

If you lie and somehow successfully enter the USA, this doesn't mean that she'll be in the clear. Using a Euro passport won't help much; a criminal record is carried with you no matter where you go. The risk is not much mitigated by using a different passport even if the crime is committed in another country; in fact, it's almost foolish to talk about any kind of risk mitigation in this regard. In any case, even after entering the USA it is very conceivable that her real record could be found out and she would be able to be detained in almost any jurisdiction.

In short, I would not recommend lying at all. Not now, not in another jurisdiction and not even in 10 years time. Perhaps it is unfortunate that her ability to travel to the US is much complicated by these convictions. But lying is not the answer and - I believe - has a very high risk of making things worse.

EDIT: Forgot to mention. Remember that a VWP and ESTA approval doesn't mean that your entry into the USA is guaranteed. All it does it screen you before you fly and satisfies that requirement on the part of the carrier. Once you get to the US border and DHS, you'll be assessed again which means very well that particular information like criminal activity and so on could be transmitted to DHS in advance.

 

[sebjac]

"The consequences of lying and getting caught more than outweigh the chance of not getting caught. "

Thanks for your reply. But I guess it's interesting how different people are.

For me, the consequences of a) not being able to do to the US now b) perhaps being able to go to the US in the future, but having to go through the laborious process of the visa application ... far outweigh the small chance of the consequences of being caught.

Interestingly, the Home Office in the UK state that they do not share criminal record info with US authorities, unless its on INTERPOL. (Sorry, cant post link as Im a new member). I think I will contact the Australian privacy commissioner and enquire about Australian data sharing.

I wonder whether our difference of opinion is due to
- our different interpretation of the risk of being caught, or
- our different fear of what the US authorities would do to us if caught
- or any moral repulsion to lying on a VWP form!


Cheers,
Seb

 

[jsd]

All information provided by you, or on your behalf by a designated third party, must be true and correct. An electronic travel authorization may be revoked at any time and for any reason, such as new information influencing eligibility. You may be subject to administrative or criminal penalties if you knowingly and willfully make a materially false, fictitious, or fraudulent statement or representation in an electronic travel authorization application submitted by you or on your behalf.

Enough quoted, that is one of the first things you see when you click on the ESTA application button, NEVER attempt to deceive a government agency (or any company) because chances are THEY WILL FIND OUT.

If you decide to go ahead and knowingly not tell the truth and end up getting caught out and subsequently fined, imprisoned, whatever then more fool you...:-|


Have a nice day

Josh


By the way, Welcome to AFF Sorry my reply is so blunt but I'm not going to be held even remotely responsible for (nor do I condone) any illegal activities that may take place :!:

 

[thewinchester]

Enough quoted, that is one of the first things you see when you click on the ESTA application button, NEVER attempt to deceive a government agency (or any company) because chances are THEY WILL FIND OUT.

Consensus thirded.

As I've said - these questions, specially from a legal perspective, should not be entertained here. They are simply too risky, and the answer to them is both repetative, plain and simple.

Sounding like a broken record - If you have committed and/or been convicted of a crime that the Immigration Authority of the country you wish to travel to requires disclosure of, DISCLOSE IT!

Do not under any circumstances

knowingly or unknowingly;

• decieve an immigration authority,
• attempt to devieve an immigration authority,
• omit any information relevant to or required as part of the visa application, or
• enter, or attempt to enter any country under a program/process which is rendered invalid on account of the disclosable criminal act.

Committing any of the four above acts (and many others) will guarantee that you or someone doing this will be caught and subjected to even harsher penalties or restrictions.

Do

• Follow the established process for visitor entry (such as applying for a visa), specially when you are a person who has committed or been convicted of a criminal act for which that country requires disclosure.
• Contact the local Embassy or Consulate of the country in question if you have any questions, queries or concerns regarding such matters.

The last word

If you think for a second you can run the gauntlet and not be picked up, think again.

If you think that upon reaching border control that they won't check your bona fides if there are any concerns, think again.

If the country you arrived at does not already have this information, an immigration officer can easily pick up the phone to your countries embassy or foreign affairs agency to get/verify/check this information and your history.

If you or someone you know falls into this category of person - the above information is the first, last and only advice that should be provided on this matter.

 

[trooper]

"Yeah, tell her to go ahead and lie on an official form.. she won't get caught, noone ever does or ever has been."

That is entirely untrue of course... but it IS what the OP wanted to hear, right?. :shock:

Interesting how many times on this forum (and others) advice is asked for about clearly (and acknowledged) illegal/immoral/unethical practices... with the (rather amazing) caveat that noone providing such advice voluntarily must EVER comment on the illegal, immoral or unethical nature of it...

 

[munitalP]

Welcome to AFF sebjac

Now other members have got off their moral high horses and mountainous high ground, I will welcome you to AFF and admit I partially understand your dilemma - I had a similar problem with an employee in recent times who had committed a theft and was convicted. He had driven home from skiing with a group of friends and forgotten to return a set of hire skis - once noticed back in Sydney, decided to return them the following weekend when he was planning to return skiing, didn't ring the hire company, then during the week, the police came and arrested him (at work!) for his stupidity, charged and convicted of theft.

He was booked to attend (and present a paper) at a conference in Tampa (FL) which was extremely important to attend training wise.

As his manager I must admit to save a lot of headache[the thought crossed my mind], it would have been better to have let him go under his own gumption and I am positive he would have not been honest on his VWP application, and would have been caught - in some ways a lesson in stupidity, however, as a company, there was no way we could do that.

Our HR department (with him) applied for a visa for his travel, and through the correct channels in Sydney. It was approved within a few weeks and he travelled to the US incident free, attended the conference and returned without stealing any items of cultural significance.

I am confident the only reason he was granted the visa was that the company undertook to be responsible for his actions - how this was achieved I do not know, but the HR manager and I spoke after the event and had this to say:

1. If he was travelling for leasure, he would not have been granted the visa
2. The company sponsorship of his character played an important role in getting the application over the line
3. They (US Immigration) would have found out if he had not applied for a visa

Please dont ask any questions of how this worked - I don't know the process, only the outcome.

I think if you must travel to the US, and unless in a similar situation as I have mentioned above, your partner has little or no hope of getting a visa to the US.


[Post Script: I just remembered that there was an interview with some US official and a statutory declaration signed off by a JP or similar regarding the initial incident as well. Ill update this footnote if I remember more of the process taken]

 

[munitalP]

...

By the way, Welcome to AFF Sorry my reply is so blunt but I'm not going to be held even remotely responsible for (nor do I condone) any illegal activities that may take place :!:

I don't believe that you needed to put some stupid disclaimer onto your post like this.

 

[anat0l]

For me, the consequences of a) not being able to do to the US now b) perhaps being able to go to the US in the future, but having to go through the laborious process of the visa application ... far outweigh the small chance of the consequences of being caught.

Putting aside any of the immorality or illegality of the action which is being proposed, simply the actual risk of the event is just too great.

If you really think the risk is worth it, then go ahead - none of us can stop you (but I do not accept liability for anything that happens to you!). The minimum that will happen is a big mark on record and possibly never being able to enter the US ever again, and the worst that can happen is imprisonment, a substantial fine and a possible implication and intensive investigation into the motives for the lie (e.g. to enable other criminal activity), but if you're prepared to accept those consequences should they occur, then so be it.

Interestingly, the Home Office in the UK state that they do not share criminal record info with US authorities, unless its on INTERPOL. (Sorry, cant post link as Im a new member). I think I will contact the Australian privacy commissioner and enquire about Australian data sharing.

Irrespective of the rights to share information between jurisdictions, it must be possible for them (even in some non-trivial fashion) to share at least a fact that one has a criminal record (they may not know the detail, but at least that your record is not clean). As I said, it does not have to happen when you are being examined at the border - it could happen later and if it is found out, you can be apprehended later (e.g. when you attempt to leave the country, or even back in Australia). Also keep in mind that when you enter the US, all of your fingerprints and face image is collected during the immigration process, which makes establishing your record that much easier and especially then expedites the process of your being caught and further blacklisted. So once again, the risk is too high.

We see many cases of people attempting to enter Australia having lied on their visa application on the question about having a criminal record. They come from various jurisdictions, but in the end they have been caught at the border. How does the Australian border control do it? There's always a chance that someone will slip through the cracks, and we don't know how many precisely (it will probably be perpetually difficult to establish this statistic)....

I wonder whether our difference of opinion is due to
- our different interpretation of the risk of being caught, or
- our different fear of what the US authorities would do to us if caught
- or any moral repulsion to lying on a VWP form!

Probably all three.

You asked for an opinion on the chances of getting caught, I provided. Note this is just a legally unqualified opinion - don't come wailing to me citing precedent or "expert witness" if you go through with the action but get caught. Again, what could be so desperate that would warrant this action being contemplated?

Now other members have got off their moral high horses and mountainous high ground, I will welcome you to AFF and admit I partially understand your dilemma - I had a similar problem with an employee in recent times who had committed a theft and was convicted.

Perhaps there is a painful and anxious element on the part of the OP which I and others have failed to empathise with, but our OP won't tell us why it is so important to go that would justify him trying to go through with this action (perhaps it's too personal to state, but even we don't know that). Even then, it might not alter my opinion so much (again, perhaps that completely lacks any empathy...). This is almost at a dilemma stage of a question such as, "If you have a starving family, is it wrong to steal a loaf of bread to feed them, considering that most supermarket thieves hardly get caught even if they are filmed on security camera?"

Another key difference between your case and the OP is that what you did for your employee was go through the proper channels. I don't know how long or how painful the process may have been (it doesn't appear to be the "6 months" as implied by the OP, but then anything is possible), but you did it legally. There was always a chance of the visa app being rejected, but it went through. If anything, this might signal to the OP that there is a chance that a visa may be granted but they will have to risk going through the visa application process (after trying and more than likely failing the VWP process). The risk of not getting a visa is probably better than the risk of being caught lying on a VWP application.

 

[anat0l]

I don't believe that you needed to put some stupid disclaimer onto your post like this.

The way things are going I'd be a little bit scared ("he said, they said, they are (are not!)"). But then, that's us, not you.

 

[russ]

Given that your partner is innocent, it's okay (in fact its mandatory) to lie on the form.

However, be aware that if your partner is turned around at immigration, she will not get frequent flyer points or status credits for the return journey.

Good luck!

 

[anat0l]

Given that your partner is innocent, it's okay (in fact its mandatory) to lie on the form.

But she has a conviction recorded against her. As far as the law and all official channels are concerned, she has committed a crime. If she was officially innocent, then there would be no criminal record and hence no problem.

Unless it is possible to be officially innocent but still carry a criminal record for that crime.

Finally, if she is innocent and had no record, answering "No" as to whether you've been convicted of a crime of moral turpitude (and etc.) is not a lie any more - it's the truth. As should be told all the time with respect to these kinds of things.

 

[JohnK]

Welcome to AFF sebjac!

I don't believe it is worth risking lying on a VWP or ESTA application to the USA even though I believe the chances of getting caught are very low. Take your chances with being honest on a visa application and you never know it may well be successful.

You do not want to try and enter the USA by lying and then refused entry for life as there may well come a time in the future where you need (as opposed to want) to visit the USA....

 

[medhead]

But she has a conviction recorded against her. As far as the law and all official channels are concerned, she has committed a crime. If she was officially innocent, then there would be no criminal record and hence no problem.

Unless it is possible to be officially innocent but still carry a criminal record for that crime.

Finally, if she is innocent and had no record, answering "No" as to whether you've been convicted of a crime of moral turpitude (and etc.) is not a lie any more - it's the truth. As should be told all the time with respect to these kinds of things.

I'll go out on a limb. But isn't the question about if you've been arrested for a crime of moral turpitude. Not if you've been convicted. That has been my understanding. And that represents the basic failure of the US system as one can be arrested and not convicted.

 

[anat0l]

I'll go out on a limb. But isn't the question about if you've been arrested for a crime of moral turpitude. Not if you've been convicted. That has been my understanding. And that represents the basic failure of the US system as one can be arrested and not convicted.

If the ESTA and / or entry requirements of the USA specify "arrested" or "charged" rather than "convicted" then that sets an even higher bar for the OP which is much more difficult to overcome.

In saying that, however, convictions are easier to track down rather than mere arrests (esp. without convictions), since the former is certainly recorded, not sure about the latter. In which case, do you have a chance of getting away with it? Probably better. Risk? Still too high for my blood.

 

[dfcatch]

I'm with the others on this.

Don't lie - it's never worth it.

I once left the US voluntarily even though I had a new visa application in, just because they hadn't made a decision an I didn't want to risk being "out of status".

Don't risk it!

 

[Alanslegal]

I would not attempt to provide false information or leave "things" out intentionally, and just apply for a visa formally. Worse case is that the visa is rejected, but not don't lose sleep over it as there are still a zillion other destinations that you can visit besides the USA!

 

[TonyHancock]

I agree with JohnK, his post says all you need to know. Succinct and wise.

It is just not worth the risk to lie you really might have a need to go to the US one day. The US immigration authorities can be difficult to deal with at the best of times.

 

[oz_mark]

If the ESTA and / or entry requirements of the USA specify "arrested" or "charged" rather than "convicted" then that sets an even higher bar for the OP which is much more difficult to overcome.

In saying that, however, convictions are easier to track down rather than mere arrests (esp. without convictions), since the former is certainly recorded, not sure about the latter. In which case, do you have a chance of getting away with it? Probably better. Risk? Still too high for my blood.

Of course arrests are recorded (as are those that were summonsed, cautioned etc).

 

[serfty]

Several bits of mis-information need to be cleared up.

• If the OP's friend is on a [Good behaviour] bond, there has been no "conviction" as such recorded. (i.e. There is no "criminal" record)
• There will be a Judiciary record however. Depending upon the state when the Bond was entered into, this would ordinarily be wiped when the terms of the bonds are successfully completed.
• Australian Law enforcement Authorities do indeed provide USA government authorities with information on a Persons Judiciary record.
  ►►However, with some special exceptions which do not apply here, by regulation, Australian Entities/People/Authorities are not permitted by law to disseminate any information about a persons Judiciary record to any entity/person/authority in relation to a conviction that is considered "Spent" or "passed". This included ◄◄​

More can be found in this thread here:

• http://www.australianfrequentflyer..../criminal-record-obtaining-us-visa-15468.html

As for the OP's friend; IMHO their only real option is to apply for a Visa at a cost of USD140+ and tell the truth. (Embassy of the United States Canberra, Australia - Visas)