CRIMINAL RECORD - UPDATE

[hurricanesarah]

Well I just got the phone call that the visa was denied. So now what? Is there an appeal? They have paid out all this money on the holiday for plane, villa and whatnot. They're not happy obviously. Can they claim on insurance? They were obviously upset and mentioned that they would try and auction it all on Ebay. I don't think they can auction the villa dates on there surely? I'm not sure. Will he be denied in the future too? What about their plans to live there if he can't even get a visa to go on holiday? Advice please from anyone who can help. Thanks ever so much. They were supposed to be flying out in December.
Sarah

[amy]

Hi Sarah,
do you have the topic link for the first part of this story?

[Nostromo]

I am very sorry to hear what happened Hurricanesarah. There may be an appeal possibility; Blott or Uncle John will know more about it.

Despite this setback, I firmly believe that your friend did the right thing in coming out 'into the open' and declaring the record. Disappointing though this is, it would have been far more devastating if he had gone ahread without the declaration, got caught at immigration and sent back. I think the present refusal may be more likely due to his earlier undeclared entries than the record itself. That only proves Blott's firm advice that it is better to declare everything and take the chance.

I sincerely hope that there is a happy ending somewhere to this story. All the best.

[blott]

The link to the previous thread is here http://www.orlando-guide.info/forums/topic_15226.asp

I do think Nostromo may be right and this refusal may well be to do with the fact that your friend has used the visa waiver before and denied any convictions. They obviously have records of previous entries and exits to and from the US.

I also think that it was better to find out before they went rather than take the very likely risk, now that fingerprinting is involved on entry, of being sent back again on arrival.

Info from the US Embassy website about refused visas is here http://www.usembassy.org.uk/cons_web/visa/niv/add_req.htm#deported I'm not sure how this would affect any plans they may have for living there in the future but there's info here http://www.usembassy.org.uk/cons_web/visa/niv/add_crime.htm

If they've booked a villa, they won't be able to sell it on Ebay because it doesn't belong to them and they won't be able to sublet the accommodation. Not sure about flights but the tickets and passport names must match - perhaps the travel company would be willing to alter these for a fee?

I'm really sorry about your friend's problems but there was always the possibility that it could have been even worse and they could have been sent back from the US airport.

[hurricanesarah]

Well from the very brief conversation I had, apparently the US Embassy said that it was because he hadn't been employed by his current company for a long time???? He has just started working in a new company with a view to being Director and has only been there about three weeks. Does this sound right to you? It sure doesn't sound right to me, or is there more to it than this? I mean if this is true, then surely it would mean that anyone who has not been at their job for a long time wouldn't get a visa??? Or is there more to it that I don't know. Obviously I want to help but I'm not sure what way to go on this. Is it likely that they will be able to recoup any costs on their holiday insurance at the very least???? Thanks so much for advice so far and would like more. Not sure what I can do to help at this stage, that's all.

Another update: Had another quick phone call. He was told he would not be considered for an appeal so he was not to apply. He was told he could apply next year, which obviously would not be in time for this trip, but there's no guarantee he would get it. Apparently with the job and the criminal convictions, he was classed 'unstable'. Obviously this is really horrible news for everyone and I realize probably now they can't go so I'm devastated about this but trying not to show it incase there is something I can do to help, but what?? She said apparently that there were loads of foreigners, like Egyptians etc, coming out with visas but lots of Brits got denied. Is there a quota on us or something? I'm really upset about this.

[chrizzy100]

<blockquote id="quote" class="ffs">quote:Originally posted by hurricanesarah
Well from the very brief conversation I had, apparently the US Embassy said that it was because he hadn't been employed by his current company for a long time???? He has just started working in a new company with a view to being Director and has only been there about three weeks. Does this sound right to you? It sure doesn't sound right to me, or is there more to it than this? I mean if this is true, then surely it would mean that anyone who has not been at their job for a long time wouldn't get a visa??? Or is there more to it that I don't know. Obviously I want to help but I'm not sure what way to go on this. Is it likely that they will be able to recoup any costs on their holiday insurance at the very least???? Thanks so much for advice so far and would like more. Not sure what I can do to help at this stage, that's all.

Another update: Had another quick phone call. He was told he would not be considered for an appeal so he was not to apply. He was told he could apply next year, which obviously would not be in time for this trip, but there's no guarantee he would get it. Apparently with the job and the criminal convictions, he was classed 'unstable'. Obviously this is really horrible news for everyone and I realize probably now they can't go so I'm devastated about this but trying not to show it incase there is something I can do to help, but what?? She said apparently that there were loads of foreigners, like Egyptians etc, coming out with visas but lots of Brits got denied. Is there a quota on us or something? I'm really upset about this.
[/quote]

It could be how well the records of crimes are recorded......in Egypt if there are no real records of passed crimes then people get a visa.....in England the records go back years....he now has the chance to get a visa next year......if he were stopped at the gate..he would have to wait up to 10 years.......

[blott]

I dunno but they must have some criteria or policy to judge whether to issue a visa or not and unfortunately they didn't tell me what the criteria was! I suppose, if you look at from their point of view, they can make up any rules they like and if a new job AND a criminal conviction equals unstable in their criteria, then I don't suppose we can argue much about it - it's their country's rules and not ours.

There is no quota for a B2 visa that I am aware of and perhaps the Egyptians (or whatever) just had to apply for a visa on the grounds that their passports are not being eligible for visa waiver. Egyptians with convictions wouldn't be allowed to enter this country as far as I understand it. There are lots of countries which don't have access to visa waiver for US travel whose citizens need to get visas.

They need to read the small print in every one of their contracts for flights, car rental and villa rental. I suspect, though I don't know obviously, that all of these will preclude a refund if they don't happen to be in possession of the right paperwork to enter the USA. I got our flight tickets this morning and the blurb says they are not responsible for us not having the correct paperwork or visa so I'm going on that. I think that they may find that the insurance has this clause too.

Unfortunately, they definitely can't go as they would be picked up as having a visa refused directly on arrival at Immigration. Not sure I can come up with any suggestions really, just that they check out the small print on everything to see what the situation is with any possible refunds but I don't think there's that much hope for that - unless someone else can come up with any suggestions.

[steph_goodrum]

You have to show you have real strong ties to the UK for them to be convinced you will return to UK at the end of your stay.
Our friend was refused a visa at first attempt because he was refused entry on the trip before as he had arranged to stay with family for 3 months, he had been made redundant and then 2 weks later his mum (who he lived with) and nan who were his closest relatives both died within a week of each other 2 weeks before Christmas. As you can imagine it was devastating for him at the time so thought before he looked for another job he would take 3 months to get his head together supporting himself with his redundancy money etc. Because the immigration officer felt he may try and look for work he was refused entry.
He applied a year later and it was granted but he said it was almost like a slap on the wrist for being refused entry even though he had done no wrong but once they felt he was settled again he was allowed.

In your friends case I doubt very much he will be covered by his insurance as all agencies (for flight , accommodation etc) usually have in their terms that visa requirements are your responsibility and arrangements should not be booked until you are sure you are eligible, and no refunds if you are not. We have the same in our terms as it isn't our fault if a guest isnt able to travel due to visa requirements and cant afford to lose out if they have to cancel at short notice.

[hurricanesarah]

It would appear that travel insurance doesn't cover this. I didn't suspect that it would I have to admit. Apparently you have to get all your visas in order before booking the travel, I guess that makes sense.

I'm currently trying to help out and see if the flights or accommodation can be transferred to another name, that is if it is sellable AND in time. What a horrible situation for them and everyone all round. What was going to be such an exciting time for everyone has gone pair shaped horribly and so soon to the date they were supposed to be going too. More than anything I feel so sorry for the 6 year old who had his heart on spending Christmas with Mickey Mouse:(

Well if there is anything to be learned from this I hope that anyone who is thinking they are going to be in a similar position to get this sorted out from the outset. Thank you to everyone who has helped advise through this.

[steph_goodrum]

sarah
I hope they take him to Paris if they cant get it sorted, it would be such a shame to disappoint him so close to the time. As the others have said though better now than at immigrattion after a 9 hour flight and then have to wait to come home again.

[prmoldoaks]

I wish I had seen this topic and studied it before.

For clarification here is the only exception to the Visa Rule and it relates to Arrest/Convition under 18 years:

(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

You see to sum up

1. Providing you only commited 1 crime

2 This was commited before you were 18

3. And the Visa waiver was not complted within 5 years of that crime

This appears to be the exception.

Hope this helps, the advice give above has been extracted from

http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html

US DEPARTMENT OF STATE WEBSITE

Regards all

[Nostromo]

Correct me if I am wrong, but those exceptions apply to the fact that a visa might not be refused on application despite the conviction. But the person will still have to DECLARE it in the first place, won't they?

[Robert5988]

<blockquote id="quote" class="ffs">quote:You see to sum up

1. Providing you only commited 1 crime

2 This was commited before you were 18

3. And the Visa waiver was not complted within 5 years of that crime

This appears to be the exception.

Hope this helps, the advice give above has been extracted from

http://travel.state.gov/visa/frvi/ineligibilities/ineligibilities_1364.html

[/quote]

My understanding in the useful link you provided is that this information applies to the granting of a visa.

Although the term "waiver" appears in that regulation it is not relevant to entry under the Visa Waiver Scheme(VWS).

Again my understanding is that someone who was arrested when aged under 18 - even if that were more than 5 years ago - could still not enter under the VWS.

Or have I got it wrong?

[prmoldoaks]

If you vist website

http://www.cbp.gov/xp/cgov/travel/id_visa/vwp/vwp.xml

it gives you questions and answers realting to Visa Waiver Programme, the web site is US Customes Border and Protection.

If you look at question " WHO IS ELEGIBLE TO USE A VWP" it lists all the requirements and staes :

"you are not inadmissible under section 212 of the Act. For reasons that would make you inadmissible, please see the Immigration and Nationality Act at INA § 212 (a)"

Which brings us back to my post above which relates to 212(a) of the Act.

If in doubt always check with the Embassy, but the Act is written for both sides to interpret and clearly defines the requirements of the USA.

You can get a copy of I-94W (Green Form) from web site

http://www.cbp.gov/xp/cgov/travel/id_visa/vwp/

The question you have to answer honestly is :

"Have you ever been arested or convicted FOR an offence or crime INVOLVING moral turpiitude or a violation related to 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 trafficker, or are you seeking entry to engage in criminal or immoral activities"

Hope this helps

[Robert5988]

Prmoldoaks,
I see the point you are making.

<blockquote id="quote" class="ffs">quote:(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
[/quote]
That condition in the above quote is interesting. Many convictions result in a minor punishment – particularly for a first offence. However the person may have been prosecuted under a section that carries a maximum possible sentence of custody in excess of one year; albeit that this is rarely awarded. It is surprising how many offences under UK law have – in theory - long custodial sentences.

My concern would be that you have to "convince the examining CBP officer that you are clearly and beyond a doubt entitled to be admitted and that you are not inadmissible under section 212 of the Act."

Also that in entering under the VWP "you waive any right to review or appeal a CBP officer's decision as to your admissibility."

I suspect if you answered "yes" to having been arrested on the I-94W you might be in for a long delay at immigration while it was sorted out.

[blott]

You can't enter the USA on a visa waiver if you have ever been arrested (see http://www.usembassy.org.uk/cons_web/visa/niv/vwp.htm) and you need to apply for a visa.

The quotation originally posted by Prmoldoaks relates to being refused a visa and not travelling on a visa waiver.

[prmoldoaks]

Yes Blot what you have posted is correct.

But please note the Waiver Visa is written in accordance with and under Immigration and Nationality Act.

The quotatio above is from the Immigration and nationality Act and relates to all Visa's including Waiver Visa's (Which are Visa's).

If you are over 18 and have been arrested YOU MUST APPLY FOR A VISA.

The Immigration and Nationality Act is what is important and as long as you FULLY COMPLY with the ACT you have no problems.

This is my interpritation of the Act (which is pretty clearly written), you can obtain a copy of the act from the US Embassy. It just so happens that my website reference shows under Visa applications.

Your website post also refers to I-94W (Green Card), again you have to answer honestly item "B" on the Green card and if you can say honestly "NO" you have no problem.

The Green card is issued by the US Customs and Border Protection OMB 1651.0111

REMEMBER, IF IN ANY DOUBT CONSULT THE EMBASSY DIRECT