advice please

[ladypaula]

My friend has visited Florida once a year for the last 10 years on the VWP as has never been arrested. However, a year ago she was arrested at her home address as her boyfriend (now ex) was arrested on suspicion of money laundering. (he had bought some "dodgey stained money). At the time of the investigation he was also charged with working whilst claiming incapacity benefit and a whole host of other charges). the police obviously used her in an attempt for him to plead guilty to all his charges. Her original charge was money laundering as he had given her £1000 for xmas which he never referred to in interview and it was only because she answered questions honestly and said this on the police tape. The case went to crown court but was never proceeded with on her charge as the prosecution were happy to accept that she had worked in the same job for 24 years and had paid her taxes. the charge was left on file.

the question now arises about florida. she obviously wont go to florida and lie on the vwp as knowing her luck she will get caught and wont take the risk of ruining everyone's holiday. she asked the barrister for a memorandum of conviction which she had seen mentioned on this site but he said she had not been convicted of anything and told her to just go to America without applying for a visa! he was not familiar with USA policies.

What does everyone advise? How long will the procedure take to sort out and what paper work will be required and from whom, bearing in mind that the case was dropped? She obviously does not have a criminal record but something will be on file somewhere but where?
Any advice and help would be appreciated

[Kazzie]

I may be totally wrong but if she was arrested, regardless that she was never convicted, she would need to apply for a visa. I am pretty sure there is a question on the visa waiver form that asks have you ever been arrested.

Karen

[Albert the Frog]

From what I can see on the visa waiver form it says have you ever been arrested or convicted of a crime involving "moral turpitude"--What the hell is that then??
Well--I found this definition and i think that she would need to get a Visa....but you pays your money and you takes your choice.--I'm no lawyer and feel I should tell you that I think I'm going to be refused if I look the wrong way at the IO

"Crime of Moral Turpitude, 8 U.S.C. § 1251(a)(2)(A)(i)


The term "involving moral turpitude" is difficult to define with precision. However, a challenge to this designation as being unconstitutionally vague has been rejected.
Chu v. Cornell, 247 F.2d 929 (9th Cir. 1957), cert. denied 355 U.S. 892 (1958). Administrative case law has characterized moral turpitude as "a nebulous concept, which refers generally to conduct that shocks the public conscience." Obviously, offenses such as murder, voluntary manslaughter, kidnaping, robbery, and aggravated assaults involve moral turpitude. However, assaults not involving dangerous weapons or evil intent have been held not to involve moral turpitude. Conspiracy, attempt, or being an accessory involves moral turpitude if the underlying offense involves moral turpitude. There is administrative and judicial case law holding that any crime having as an element the intent to defraud is a crime involving moral turpitude. See Gordon and Mailman, Immigration Law and Procedure, § 75.05[1][d].


A sentence of confinement of one year or more is sufficient even if the sentence is entirely suspended. However, a single crime of moral turpitude in which a sentence of less than one year is imposed would not be a ground for deportation under section 1252(a)(2)(A)(i), but the same offense might provide a basis for deportability as an aggravated felony. "

[blott]

The US Embassy website doesn't distinguish between crimes of moral turpitude or not.

Important: Some travelers may not be eligible to enter the United States visa free under the VWP. These include people who have been arrested, even if the arrest did not result in a criminal conviction, those with criminal records, (the Rehabilitation of Offenders Act does not apply to U.S. visa law), certain serious communicable illnesses, those who have been refused admission into, or have been deported from, the United States, or have previously overstayed on the VWP. Such travelers must apply for special restricted visas. If they attempt to travel without a visa, they may be refused entry into the United States.

http://www.usembassy.org.uk/cons_new/visa/niv/vwp.html

[Ray9]

The Embassy rules are not actually Law ...
but a attempt to cover all situation ...
The crime is probably a CIMT ... but is a nightmare to
figure these things out sometimes.. But with no conviction????
More info here
http://www.nlada.org/DMS/Documents/1068321140.08/Flachart.pdf

Personally I would apply for the B-2 ..they may well reject it as unecessary...But whats peace of mind worth

[E. Cosgrove]

<blockquote id="quote" class="ffs">quote:Originally posted by Ray9
Personally I would apply for the B-2 ..they may well reject it as unecessary...But whats peace of mind worth
[/quote]
But if she applies for a B2 and is refused she will have to admit that on a visa waiver[msnoo]

[Robert5988]

This is has been raised so many times and it all comes down to an Interpretation of the Visa Waiver(I94-W) wording.

There is no doubt, as Blott states, that the US Embassy website states that if you have ever been arrested that you should apply for a Visa. However there is no requirement for anyone to read that website(and many people still don’t have the internet.) Also, as Ray states, the status of what is written there is questionable. It is patent nonsense for someone arrested, say, in a case of mistaken identity and released with an apology to be ineligible for a Visa Waiver.

So it all boils down to the incomprehensible question on the I 94W that refers to ‘Arrested and/or Convicted - moral turpitude - sentenced to confinement etc etc.

Surely if the US Immigration service meant an arrest(any arrest) had to be declared they would put this on the I 94W and there would be no need for the rest of that question to be included.

If those of us, for whom English is the mother tongue, cannot make sense of the question, how do other nationalities cope?

Personally, in the circumstances described, I don’t think she would be lying if she answered ‘No’ to the relevant question on the Visa Waiver as she has not been convicted of anything.

However as she is worried about the situation she should apply for a Visa but she obviously cannot take a Memorandum of Conviction.

[steph_goodrum]

"From what I can see on the visa waiver form it says have you ever been arrested or convicted of a crime involving "moral turpitude"

As the form stands, if read crrectly,then the only option is to apply for a Visa - whether or not that is granted only the Embassy can decide.

It quite clearly asks "have you ever been arrested OR convicted of a crime involving etc."

If what it ACTUALLY MEANS is "have you ever been arrested FOR or convicted of a crime involving etc. Then the answer would surely be Yes.

Don't forget in US law ignorance is no defence, it is up to anybody who wishes to travel to ensure they know, understand and abide by what is relevant.

Whilst it may be considered a hassle to apply for and go to London for Embassy interview, the money spent will be well worth it if it means peace of mind and not going across the Atlantic and being turned back on a technicality (I know the same can happen with a VIsa).


Since the charge was left on her file, there is a possibilty that there will be a record which is available to the US under some treaty or other and since they take a dim view of money laundering (sometimes) they are more liable to refuse entry, they seem to work on the "no smoke without fire" principal rather than the "innocent until proven guilty" track.

[mizzy]

to find out whether or not prosecution/conviction (subject access) info is held on computer file you can apply from here, there is a fee to pay and forms to fill in so i would telephone them first for details

National Identification Service
Subject Access Office
Room 350
New Scotland Yard
Broadway
London
SW1H 0BG

tel 020 7230 2958

my brother had to go through this process to obtain a memorandom of conviction which is what they ask you for if you apply for a visa and have been arrested/covicted

hope this helps

Mizzy

[Ray9]

<blockquote id="quote" class="ffs">quote:Originally posted by E. Cosgrove
<blockquote id="quote" class="ffs">quote:Originally posted by Ray9
Personally I would apply for the B-2 ..they may well reject it as unecessary...But whats peace of mind worth
[/quote]
But if she applies for a B2 and is refused she will have to admit that on a visa waiver[msnoo]
[/quote]
That is no great problem ..only about 50% of B-2 requests are granted.. most denials are for not required or unecessary
Many people still apply because they think it is necessary

[Sniff]

I can sympathise with your friend's plight, but I'm always amazed people come to sites like this for such advice. Nothwithstanding the undoubted experience and knowledge of many of the people who post here, they are not the ones who can grant you entry to the US.

Tell your friend to go to the US Embassy and explain the situation to them. They will tell her if she needs a visa or not. If they say not, but she's still worried, ask them to put it in writing on headed paper. It still won't guarantee entry (IO's are a law unto themselves it seems) but it'll go a long way towards making her feel better.

[mizzy]

Sadly Sniff they won't just tell them

the process involves telephoning a very expensive premium rate number to ask for advice and it doesn't matter who you get to speak to, if there's any doubt whatsoever they will advise you to apply

also you cannot just turn up at the embassy you need an appt, which they are very rigid about when it comes to inforcing the actual timing of said appt, you also need to bring all documents with you to the appt, and finally the us embassy is based in London or Belfast so turning up is just not an option even if you lived around the corner

Mizzy

[Robert5988]

<blockquote id="quote" class="ffs">quote: I can sympathise with your friend's plight, but I'm always amazed people come to sites like this for such advice. Nothwithstanding the undoubted experience and knowledge of many of the people who post here, they are not the ones who can grant you entry to the US.

Tell your friend to go to the US Embassy and explain the situation to them. They will tell her if she needs a visa or not. If they say not, but she's still worried, ask them to put it in writing on headed paper. It still won't guarantee entry (IO's are a law unto themselves it seems) but it'll go a long way towards making her feel better.[/quote]

Sniff,
I don't in anyway dispute that your advice is correct, however the problem is that to do as you suggest takes a great deal of time, trouble and expense.

It really is a disgrace that the US authorities have allowed this lack of clarity in the regulations to go on for so long.

The irony is that it is well meaning sites like this and other publicity have added to the confusion. Law abiding citizens with 30 year old trivial offences, that by no stretch of the imagination are 'crimes of moral turpidude' are compelled to attend the US Embassy and apply for a Visa. It is absolutely clear that it is not the intent of these regulations to stop such people using the Visa Waiver scheme; but it does.

It is even more regrettable that there is no definition in US law of ‘crimes of moral turpitude’ despite attempts by US Law society(equivalent) to get a clear definition.

Until recently many many people were blissfully unaware of the US Embassy website. They looked at the question on the I 94W Visa Waiver with its reference to 'Conviction' 'Moral turpitude' 'Confinement for terms of 5 years' and with a clear conscience answered 'No' Some of these people are now worried that they had 'lied'.

[ladypaula]

to find out whether or not prosecution/conviction (subject access) info is held on computer file you can apply from here, there is a fee to pay and forms to fill in so i would telephone them first for details

National Identification Service
Subject Access Office
Room 350
New Scotland Yard
Broadway
London
SW1H 0BG

tel 020 7230 2958

my brother had to go through this process to obtain a memorandom of conviction which is what they ask you for if you apply for a visa and have been arrested/covicted


================================================== ========================

thanks, this is what we were after. obviously after being to the USA for over 10 years with never being arrested and reading this site we are of the opinion it is better to be safe than sorry! obviously she has not been convicted but it is just complicated in the fact that she was charged with "laundering money" having received £1000 for a xmas present, resultedly as a result of her boyfriend working whilst claiming benefits. does a memorandum of conviction exist if you werent convicted??????

how long does it take for this information to be put on file with the national identification service?? if there is no information there would you be safe not to apply for a visa and hope for the best.

I do find that IO's are very unfriendly and have read that the number of tourists to florida is down for various reasons including the hostile IO's!!!

[mizzy]

i'm afraid i don't know what happens or what you have to do if there's nothing on your subject access file

my brother needed his to get the info regarding his arrest and because the embassy wanted to see that information, he then went for an interview and was granted a visa

you could apply for the info and then speak to the embassy

Mizzy

[Sniff]

Mizzy and Robert...yes of course, I wasn't implying that getting information out of the US Embassy was easy, just that information gained here is pretty worthless...you'll eventually have to go to the US Embassy anyway, to be sure.

The Americans unfortunately take the view that if you want to visit the US, you have to jump through the hoops they put in front of you, whatever it takes. :(

[mizzy]

well excuse me but i would totally disagree with you there Sniff

this forum delivers a mine of useful information and i wouldn't class any of the above postings as "pretty worthless"

agreed there are no experts who work for the embassy on here to advise but that's not to say there isn't plenty of people who have had first or even second hand experience when it comes to applying for a visa

Mizzy

[traceya89]

my friend knows that she has to apply for the visa but wanted to know where she would get the information from they would need. i am sure she will be granted a visa eventually.

i wonder if the british immigration make the americans do the same if they want to come to england. i bet they dont!

[steph_goodrum]

Tracey
I'm not sure on the criteria for deciding if you do need a Visa to come to US but I do know it's unfair that we can only visit the US for 90 on Visa waiver but US citizens can come here for 6 months before they need a Visa.

[Sniff]

<blockquote id="quote" class="ffs">quote:Originally posted by mizzy
well excuse me but i would totally disagree with you there Sniff

this forum delivers a mine of useful information and i wouldn't class any of the above postings as "pretty worthless"

agreed there are no experts who work for the embassy on here to advise but that's not to say there isn't plenty of people who have had first or even second hand experience when it comes to applying for a visa

Mizzy


[/quote]
Mizzy, my apologies - by 'worthless' I didn't mean that the information offered here isn't useful, it clearly is and the people here have a wealth of experience. But it isn't legally binding in any sense at all. Even if the information given here is 100% correct, turning up at US Immigration and saying you don't need a visa because someone on this forum told you so, isn't going to carry much weight with the IO.

Regardless of what anyone learns here, and regardless of whether it's right or wrong, people will still have to talk to the US Embassy at some time to get the official status. As much as I respect the advice and expertise of people like Blott and Robert, I am not going to plan a trip to the USA based on what they say, and nor should anyone else.

It that sense, the information given here in respect of whether ladypaula's friend needs a visa or not is worthless. It's their own personal opinion, their own interpretation of what the rules say. Only the US authorities can give the definitive answer. All I said was, she should just get the real info from the horse's mouth right away and then they can stop wondering and worrying, and just look forward to their holiday.

[steph_goodrum]

she asked the barrister for a memorandum of conviction which she had seen mentioned on this site but he said she had not been convicted of anything and told her to just go to America without applying for a visa! he was not familiar with USA policies.


Sniff
It was actually the Barrister who suggested she go without a Visa, all other advice is that a VIsa is necessary which is the conclusion her friend had already made but it is actually how to get the information required for the Visa application that was the original question. Hopefully that will be in the answers where to gain the info but it is difficult to obtain a memorandum of conviction if you haven't actually been convicted so if anybody knows exactly what the relevant form would be for a charge left on file following an arrest it would be useful.

[Robert5988]

<blockquote id="quote" class="ffs">quote:Mizzy, my apologies - by 'worthless' I didn't mean that the information offered here isn't useful, it clearly is and the people here have a wealth of experience. But it isn't legally binding in any sense at all. Even if the information given here is 100% correct, turning up at US Immigration and saying you don't need a visa because someone on this forum told you so, isn't going to carry much weight with the IO.

Regardless of what anyone learns here, and regardless of whether it's right or wrong, people will still have to talk to the US Embassy at some time to get the official status. As much as I respect the advice and expertise of people like Blott and Robert, I am not going to plan a trip to the USA based on what they say, and nor should anyone else.

It that sense, the information given here in respect of whether ladypaula's friend needs a visa or not is worthless. It's their own personal opinion, their own interpretation of what the rules say. Only the US authorities can give the definitive answer. All I said was, she should just get the real info from the horse's mouth right away and then they can stop wondering and worrying, and just look forward to their holiday.
[/quote]
Sniff,
From my perspective no apology is needed as I understood the point you were making - particularly in the case being discussed - and I think everyone advised that she should clear things with the US Embassy.

I would however comment on a more general issue about your statement:
<blockquote id="quote" class="ffs">quote:regardless of whether it's right or wrong, people will still have to talk to the US Embassy at some time to get the official status.[/quote]

A couple of years ago eligibility for a Visa Waiver was a very hot subject. People were being (mis)advised on this forum, by travel agents and other sources that any conviction for any offence, including minor traffic offences rendered you ineligble for a Visa Waiver.

Lots of people were making unnecessary applications for a Visa, with all the trouble and cost this involves, based on a conviction for speeding some 20 years earlier.

The logic(or lack of it) behind these stories was their interpretation of the question on the I94-W that asks “ have you ever been arrested or convicted etc etc”. i.e. “you might not have been arrested but you have been convicted and there is nothing on the form that exempts traffic offences”

Perusal of the regulations shows that minor traffic offences are exempt – but doesn’t define a minor traffic offence and the Embassy refuse to discuss anything on the phone. Their stock answer(at £1.50 per minute) is "if in doubt apply for an interview”

I think therefore the advice given here that you can travel on a Visa Waiver in those circumstances is valid and negates the need to contact the US Embassy; and hopefully has allayed many worries.

Similarly the corrections to many other authoritative statements posted in this forum are based on sure knowledge of the facts. e.g.

All offences are time expired after x years.

You can only enter y times per year on a visa waiver.

You are restricted to 180 days in any one calendar year on a visa waiver.

[steph_goodrum]

"All offences are time expired after x years."

Sorry to contradict but the Rehabilitation of Offenders act isn't recognised in US, the offences don't "expire" and must always be declared.

[Sniff]

Fair enough - thanks Robert :)

[Robert5988]

<blockquote id="quote" class="ffs">quote:All offences are time expired after x years."

Sorry to contradict but the Rehabilitation of Offenders act isn't recognised in US, the offences don't "expire" and must always be declared.
[/quote]

Steph,
In my post I stated:

<blockquote id="quote" class="ffs">quote:Similarly the corrections to many other authoritative statements posted in this forum are based on sure knowledge of the facts. e.g.

All offences are time expired after x years.

You can only enter y times per year on a visa waiver.

You are restricted to 180 days in any one calendar year on a visa waiver.

[/quote]

i.e. All 3 of those "authoritative statements posted in this forum" are inaccurate and were corrected.

So we are in violent agreement with each other[msnwink]

[ladypaula]

thanks for all info so far provided. does anyone have any idea how long it takes to get an appointment at the embassy, wondering about a trip to london or belfast to make a mini break of it. do you have still have to make an appointment by phoning the £1.50 a minute line?

Also my friends passport runs out in February, 2007. should she apply for a new one now in anticipation of a appointment at the embassy in September/October or take her old one with her which shows 8 visits to the USA in the last 9 years? Advice on this would be appreciated.

Thanks again
Paula

[steph_goodrum]

Paule
She will have to take her old one anyway (well at least they tell you to but there will be many people who haven't kept old ones). When my daughter went last year for her Visa she only had her current and 1 previous and was fine. They will know about the visits anyway form their records I'm sure.

Acording to the website

http://travel.state.gov/visa/temp/wait/tempvisitors_wait_result.php?post=Belfast&x=111&y=15

the wait times are about 32 days for London and 37 for Belfast. As she is applying for a VIsa I don't think there would be any realbenefit to renewing her passport now, just in case she sends it off and then gets an appointment quicker than anticipated for the the Embassy, unless she prefers to do that before she gets the appointment so the Visa will be put into her new passport and so she doesnt need to carry 2 around with her.

[steph_goodrum]

We are indeed on the same page Robert.

We have stressed time and time again on here, that any opinions expressed, are just that, based on our intepretations of the wording of various documents. It doesn't even seem to be the case that you get a definitive answer from the Embassy about questions, as 2 calls to 2 operators has been known to get 2 differing responses.

[ladypaula]

are you able to get a visa put in a passport that expires in february, 2007, and use it for travel with a new passport that will start in march, 2007?

[steph_goodrum]

Yes
If your Visa is still current but your passport has expired you just take both of them whne you travel, as I mentioned though, if your friend is granted a 10 year Visa (I have a sneaking suspicion form other responses we've heard, that it may be either a one year one or single trip one) then if she hasnt renewed the old passport and gets the Visa put in there she'll will just have to make sure she takes good care of both of them.

[ladypaula]

We are having great difficulty getting through to the national identification service and on looking at various websites it might be just for if you have been conviction. the case was not proceeded with. has anyone any ideas. wondered about contacting the CRB to see what information is held there.

it certainly seems like a struggle to get the information for what is not a clear cut case!!!
any further advice would be much appreciated

[Ray9]

If you are in the metroplitan police area the form is here
http://www.met.police.uk/dataprotection/forms.htm
for other police forces go to your local station and they will give you the form ..