Visa refused

<blockquote id="quote" class="ffs">quote:The trouble is though Robert the only definitive answer seems to be that there is no definitive answer, it's down to how the person dealing with the case on the day interprets it. This is why the advice has always been from here, that we aren't experts in this field and that you should contact the people who will decide if you can or not have entry/visa if required etc. and that's is the US officials.[/quote]
Steph,

Perhaps I am not making myself clear; or you are playing The Devil’s Advocate?

What person? Dealing with what 'case’? The whole point of this discussion is to avoid there being any case to be discussed with a US Official i.e. to avoid attending at the US embassy.

We are simply talking about someone who wishes to know if he can enter the USA under the Visa Waiver Scheme.(VWS). He reads all the regulations, looks at the I94-W and there is no ambiguity at all.

He then comes onto this website and reads that “if you have ever been arrested you can’t use the VWS”

The US Government regulations, in my post above, are detailed but very clear if you read them. They don’t even mention the word ‘arrest’ and lay down the types of offence, should you be convicted, that MAY disqualify you from entry, under the Visa Waiver Scheme.(VWS) Obviously if you are still in doubt after reading them, then you need to visit the US Embassy.

In fact that is exactly the advice I have had in writing from the US Embassy in London and US Immigration in the USA. They both say “if you cannot understand the regulations, or are in any doubt of your position, you must attend for an interview”

Anyone reading those regulations can be in no doubt that an arrest and acquittal or an arrest in a case of mistaken identity etc etc, does not bar entry under the VWS. It cannot be possibly interpreted any other way.

In fact it is very clear to me from those Regulations that even if convicted for many types of offence, you can enter under the VWS.

That is also confirmed by the wording of the question on the I94-W with its reference to Moral Turpitude and 5 years confinement etc.

As you say, we aren’t experts but we can read regulations.

Yet ‘experts’ or not, post after post on this forum states, with absolute certainty, that “if you have ever been arrested you cannot enter under a Visa waiver”. That statement is repeated and repeated until it becomes accepted as an unquestionable fact. Yet that statement is not supported by any regulation that I can find.
We also have an Immigration lawyer who has unequivocally repeated the statement about an arrest, and yet when his statement was queried has completely avoided the question asking what US regulation he is quoting. I don’t intend to be rude but read his latest posts – they state nothing about an arrest.

So Steph let me ask you a straight question.

If you had been arrested in a case of mistaken identity, or arrested and not charged, would you apply for a Visa because you believe you are not eligible to enter under the Visa Waiver scheme.

Robert, the US Embassy website states:

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://london.usembassy.gov/cons_new/visa/niv/vwp.html

If you try the Visa Waiver Wizard on their website at http://london.usembassy.gov/cons_new...sa_wizard.html you'll see that they ask virtually the same question as above.

At the end of the day, it's up to each individual to decide what to do in their particular circumstances and take responsibility for their own decisions.

<blockquote id="quote" class="ffs">quote:Robert, the US Embassy website states:

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://london.usembassy.gov/cons_new/visa/niv/vwp.html

If you try the Visa Waiver Wizard on their website at http://london.usembassy.gov/cons_new...sa_wizard.html you'll see that they ask virtually the same question as above.

At the end of the day, it's up to each individual to decide what to do in their particular circumstances and take responsibility for their own decisions.[/quote]Blott,

That quote above has been discussed and discussed.

Firstly! That US Embassy site for UK is not a set of regulations. It is guidance if you cannot interpret the US regulations.

Secondly! Go to the US Embassy site for Ireland and it doesn't give any such 'guidance'. Nor do some other country's US Embassy websites.

So if you are British and happen to read the Guidance in the UK embassy site(and not the US regulations), do you maintain that you cannot use a Waiver?

However if you read the US embassy site in another country you can use a waiver??

Or if you read the definitive US Immigration regulations, and are say Irish or from another country, you should have also taken it upon yourself to read the guidance in the UK site?

Thirdly, even that guidance you quote states "some travelers may not etc" Not all travelers who have been arrested cannot etc. That point is covered in the regulations in the small print about being arrested in connection with terrorism etc.

Lastly, what about the declaration on the I-94W? Are the questions about moral turpitude and 5 years jail etc absolutely meaningless? Does it not matter that they are broadly in line with US Regulations? Or should we ignore the question and answer 'Yes' because you were arrested in a case of mistaken identity?

Of course I agree that it is up to any individual to decide what to do in their particular circumstances, as with all things in life!!

If this forum advised that individual read the question on the I 94W and the US regulations that would be good advice.

However time and time again this forum has been unequivocal in its advice that any arrest means you cannot enter under a Visa waiver.

In fact there was equally strong advice that any conviction for any offence, however trivial, meant a Visa was required - ask Tonish.

The 'may' part they have qualified in the visa waiver wizard section of the US Embassy website and relates to minor traffic offenses for which people haven't been arrested (apparently).

The ordinary 'person in the street' is only going to look on the US Embassy website if they bother to check out anything relating to US visas or visa waiver at all. I was quoting what they're going to find on that website.

Of course, you're correct that a few people won't have bothered to check anything out and will only be confronted by the I-94W when they either check in or they're already on the plane. Whatever their interpretation of that and what they fill in is really their responsibility.

I'm not sure that either of us is correct as is it is not up to us to interpret it, whatever we think the US actually means. I cannot provide advice for other people because I am certainly not qualified to do so - I don't know about you? But if we're saying that the US Embassy and its staff hasn't got a clue about its own legislation, then there's patently little hope for the rest of us!

<blockquote id="quote" class="ffs">quote:The ordinary 'person in the street' is only going to look on the US Embassy website if they bother to check out anything relating to US visas or visa waiver at all. I was quoting what they're going to find on that website.
[/quote]

Which US Embassy website would that be then Blott?

The UK site or the Irish site(or the US Embassy site for other countries) and of course they should never go to the official US Immigration site and read the definitive regulations!!!! They might even find that an arrest doesn't prevent entry on a waiver.

All I am suggesting is that in future people on this forum stop stating with absolute certainty, "if you have ever been arrested you cannot enter under a waiver". and/or giving their interpretation of that guidance as a definitive regulation.

I have been thinking of making an appointment with the embassy to discuss the "once a visa always a visa question", because I believe my wife was given a visa which she did not need. I can't think of any other way of getting a definitive answer so it's probably worth the visit.

I'll let you know if it gets me anywhere.

Tonish
I don't know about your wife being granted a Visa she doesnt really need but I do know of several people who have applied for Visas, having been told by Immigration officers that they are going to get more detailed questioning each time they visit, if they make several visits a year, only to find when they get to the Embassy it has been denied because the Officer there says that if they have no record, illnesses etc and arent planning to stay for more than 90 then they dont need one. They have been told categorically that they can use the Visa waiver for as many trips as they like in a year.

Steph,

This has all been posted by Tonish on this forum; so there is nothing ‘in-confidence’!

Tonish’s wife has a Visa.

She applied for a Visa because of the strong advice given on this forum that the wording on the I94-W “ have you ever been arrested or convicted” very firmly meant that any arrest or any conviction meant you required a Visa and were ineligible for entry on the Visa Waiver scheme.

Tonish’s wife has a speeding conviction(as opposed to a fixed penalty notice which is not a conviction) so to be on the safe side, she got a Visa.

When she entered the USA the Immigration Officer was sceptical that anyone would have applied for a Visa for a speeding conviction, the implication was the she must have had a ‘skeleton in her cupboard’ and she was subjected to further questioning.

Obviously this situation is likely to re-occur.

Regarding your very valid point about multiple visits on a waiver being allowed. Again there was the strongest advice given on this forum that you couldn’t do this; a Visa must be obtained.

When it was pointed out by several of us that there is no restriction(I myself have visited 6 times a year for years) the advice from some on this forum was that you were lucky, or you are not acting in the spirit of the Visa waiver scheme and will get in trouble, 6 months is the maximum etc.

The other situation(which I have 'banged on' about above for long enough) is the advice given about being arrested.

As you are well aware, obtaining a Visa entails a huge amount of time, effort and money – a trip to London(or Belfast) and hours queuing at the embassy for a start.

Yet we have people on this and other Forums posting mis-information with the most authoritative wording and it gets repeated and repeated and gets accepted as fact.

The end result is that lots of people apply for Visas that they simply don't need

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
When it was pointed out by several of us that there is no restriction(I myself have visited 6 times a year for years) the advice from some on this forum was that you were lucky, or you are not acting in the spirit of the Visa waiver scheme and will get in trouble, 6 months is the maximum etc.[/quote]
Are you suggesting that it is OK to spend more than 6 months in any 12 month period in the US while travelling under the VWP?

<blockquote id="quote" class="ffs">quote:Are you suggesting that it is OK to spend more than 6 months in any 12 month period in the US while travelling under the VWP?[/quote]Yes! without question.

As long as you fill all the requirements of the Visa Waiver program.

Discussed lots of times in this forum.

Firstly there is no restriction of 6 months or any period in the US regulations; or frequency of visits.

The guidance notes in the US Embassy website(FAQ) unequivocally stated there is no restriction on the number of times you can visit on a Waiver or any restriction on the interval between visits.

Just to pre-empt the usual comments, you have to satisfy the Immigration Officer that you fully meet ALL the conditions of the waiver.

Obviously no more than 90 days at a time, and you can't now go to a neighbouring country(Canada, Mexico etc) and return.

There could be tax implications etc etc.

In theory, you could spend 90 days in the USA, return to UK for a day, back to the USA for another 90 days, back to UK for a day etc etc(360 days each year) and go through that routine for as long as you wished, and US Immigration were happy.

At this point we normally get posts with conjecture of what would happen if you tried to do just that - and they may well be right. However there is nothing in the regulations to prevent you spending 360 days a year in the USA on a waiver.

My opinion(and it is just an opinion)is that US Immigration have no reason to prevent somebody who meets all the criteria for staying in the USA, and whom they are convinced have sufficient funds to not be a burden on Uncle Sam and eventually intend to return to the UK.
However if they did refuse to let you stay for lengthy periods, it would be because they had doubts about your intentions, and not because the regulations don't allow those stays.

I know that is correct because on our last trip the Immigration Officer was very friendly and he commented on how many times we had visited the States. We said we just love finding new places and my husband said he'd like to move, given half a chance. The IO said you realise you can come in 90 days and then leave and come back for another 90etc and we said we couldnt at the moment because of work commitments and he said well at least when you retire you have that option and specifically said and if any other Officer tells you that you can't be done, ask him to show you where it's written that you can't, and he wont be able to because it isn't.

Thats good to know ,is it my imagination or are US Immigration Officers getting more friendlier than they used to be ? .Maybe they have learned the importance of a [msnsmile2].

Yes not problem with that. You just have watch out for the 180 day rule for tax.

<blockquote id="quote" class="ffs">quote:Originally posted by Snapper
<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
When it was pointed out by several of us that there is no restriction(I myself have visited 6 times a year for years) the advice from some on this forum was that you were lucky, or you are not acting in the spirit of the Visa waiver scheme and will get in trouble, 6 months is the maximum etc.[/quote]
Are you suggesting that it is OK to spend more than 6 months in any 12 month period in the US while travelling under the VWP?
[/quote]

Just returning to the question of being arrested and/or being convicted and entry under a Visa Waiver.

Perusing the US Regulations I came across this question in the FAQ section on the Visa Waiver Program:

<blockquote id="quote" class="ffs">quote:Question
Can I be admitted into the U.S. if I have either a misdemeanor or criminal record?

Answer
The U.S. does not deny entry to persons with a "Driving Under the Influence" conviction - although if there are multiple convictions for this and or other misdemeanors, you could be denied entry.[/quote] That also appears to be in line with all of the definitions(by precedence) for 'Offenses(sic) of Moral Turpitude' that I have read.

Now in the UK(and I believe most other countries) that offence always means an arrest and of course conviction speaks for itself.

Seems difficult to reconcile that statement, with the interpretation, of the US Embassy(for UK!!!) guidance notes, so often given on this forum.

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
Just returning to the question of being arrested and/or being convicted and entry under a Visa Waiver.

Perusing the US Regulations I came across this question in the FAQ section on the Visa Waiver Program:

<blockquote id="quote" class="ffs">quote:Question
Can I be admitted into the U.S. if I have either a misdemeanor or criminal record?

Answer
The U.S. does not deny entry to persons with a "Driving Under the Influence" conviction - although if there are multiple convictions for this and or other misdemeanors, you could be denied entry.[/quote] That also appears to be in line with all of the definitions(by precedence) for 'Offenses(sic) of Moral Turpitude' that I have read.

Now in the UK(and I believe most other countries) that offence always means an arrest and of course conviction speaks for itself.

Seems difficult to reconcile that statement, with the interpretation, of the US Embassy(for UK!!!) guidance notes, so often given on this forum.
[/quote]

It's difficult to envisage a conviction for drink/driving without an arrest except perhaps where the driver is immediately taken to hospital and a blood test is taken there. If that were seen as an exception then the system is even more illogical that it seems.

I would also add that some of the examples given as offences of moral turpitude are not specific offences under English Law so it isn't possible to have a conviction for them from an English court.

I suspect that we have a case of American legal and cultural principles trying to be directly applied to UK citizens. No wonder it isn't clear!!

The new ESTA procedure for entry - that will soon be mandatory - gives some welcome clarification for those unsure how to answer the question:

" 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?"


<blockquote id="quote" class="ffs">quote: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[/quote]

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
The new ESTA procedure for entry - that will soon be mandatory - gives some welcome clarification for those unsure how to answer the question:

" 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?"


<blockquote id="quote" class="ffs">quote: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[/quote]


[/quote]

That does help but I still can't understand why 'arrested' is viewed in the same light as 'convicted' and what does 'aggregate sentence to confinement' mean?

Aggregate sentence to confinement means if you have prison sentences totalling 5 years or more so either if for example you have a 1yr +2yr + 3yr sentence that would toal or (aggregate) to 6 years so would need to apply for a visa.
Dont forget the Americans are using their interpretation of "arrest" in the US it may amount to an assumption of guilt but since they are using the same rule to cover 27 visa waiver counrties cant apply all their definitions of arrest to decide their rules.

<blockquote id="quote" class="ffs">quote:That does help but I still can't understand why 'arrested' is viewed in the same light as 'convicted' and what does 'aggregate sentence to confinement' mean?[/quote]

Agreed the link between 'arrest' and 'convicted' doesn't make sense,

I assume 'aggregate sentence to confinement' means 'sent to jail for 5 years' but again badly worded.

<blockquote id="quote" class="ffs">quote:Originally posted by steph_goodrum
Aggregate sentence to confinement means if you have prison sentences totalling 5 years or more so either if for example you have a 1yr +2yr + 3yr sentence that would toal or (aggregate) to 6 years so would need to apply for a visa.

[/quote]

I understand that point but it would only apply for 'conviction'. The definition includes 'arrested' and I can't see how you can calculate the aggregate if somebody is ultimately acquitted and, presumably, not subject to sentence.

Hi All

At the moment can any of you tell me who actually checks to see if all the YES/NO questions on the Waiver form have been answered truthfully?

For instince if I had been passed a prison sentence of 6 years (not that I have !!) then ticked "no" on all the boxes how do immigration know that I have lied?

Im just back, had a ball[8D]

If we knew that for sure, no-one would ever have to tell the truth would they? That's a very sensitive secret to which only the US Immigration authorities would know the answer.

However, as a general principle of life as a whole, it's always better to tell the truth than not in my experience - otherwise sometimes the truth comes out to bite you on the bum when you're least expecting it so it's much easier to be honest up front and then you have no worries.

Glad you had a good time.

<blockquote id="quote" class="ffs">quote:At the moment can any of you tell me who actually checks to see if all the YES/NO questions on the Waiver form have been answered truthfully?

For instince if I had been passed a prison sentence of 6 years (not that I have !!) then ticked "no" on all the boxes how do immigration know that I have lied?[/quote]If that is a serious question, nobody knows the answer.

You may get away with it - you may not.

Immigration may have been alerted before you arrive - they may not. Don't forget that all details of passengers are sent in advance to the USA these days.

Could not agree more !!

Was just curious :D (or nosey[msntongue])

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
<blockquote id="quote" class="ffs">quote:At the moment can any of you tell me who actually checks to see if all the YES/NO questions on the Waiver form have been answered truthfully?

For instince if I had been passed a prison sentence of 6 years (not that I have !!) then ticked "no" on all the boxes how do immigration know that I have lied?
[/quote]

If that is a serious question, nobody knows the answer.

You may get away with it - you may not.

Immigration may have been alerted before you arrive - they may not. Don't forget that all details of passengers are sent in advance to the USA these days.




[/quote]

Yeah ok, I am only asking a question.......................Good job my partner and I are squeeky clean, with not as much as a penalty point on our driving licences aint it[msneek]

There was a topic on a hotal forum a bit ago about a woman out shopping and came back to her hotel to find her husband deported because he lied...she was very upset...she had no idea where he was..
Someone said that there are on going checks so if you are found out you could be deported at any time...they had from what i remember been in FL a good few days...

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988

Immigration may have been alerted before you arrive - they may not. Don't forget that all details of passengers are sent in advance to the USA these days.
[/quote]
Many details of passengers are sent in advance to the USA. But details of prison sentences are not part of that info - the airlines have no way of knowing that information, and no way of obtaining it.

It's possible they do random spot checks, but even that I find difficult to believe. For the USA Govt to contact UK Govt and get details on any convictions for a particular individual would I am sure (given the incompetence of most governmental organisations) take weeks if not months - by which time you'd be long gone.

I think it's much more likely that answers to these questions are only ever scrutinised if you are arrested in the USA for some other offence. Then they probably drag out all your immigration forms and check, just to see if they can construct a slightly bigger book to throw at you :-)

<blockquote id="quote" class="ffs">quote:Many details of passengers are sent in advance to the USA. But details of prison sentences are not part of that info - the airlines have no way of knowing that information, and no way of obtaining it.

It's possible they do random spot checks, but even that I find difficult to believe. For the USA Govt to contact UK Govt and get details on any convictions for a particular individual would I am sure (given the incompetence of most governmental organisations) take weeks if not months - by which time you'd be long gone.
[/quote]

Good Lord, I wasn't implying that any details, other than those the passengers themselves provide, would be sent ahead.

Likewise I suspect that they don't even carry out random checks, but they might have 'intelligence' on certain individuals. A case in point was Cat Stevens(don't know his new name)

<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
<blockquote id="quote" class="ffs">quote:Many details of passengers are sent in advance to the USA. But details of prison sentences are not part of that info - the airlines have no way of knowing that information, and no way of obtaining it.

It's possible they do random spot checks, but even that I find difficult to believe. For the USA Govt to contact UK Govt and get details on any convictions for a particular individual would I am sure (given the incompetence of most governmental organisations) take weeks if not months - by which time you'd be long gone.
[/quote]

Good Lord, I wasn't implying that any details, other than those the passengers themselves provide, would be sent ahead.

Likewise I suspect that they don't even carry out random checks, but they might have 'intelligence' on certain individuals. A case in point was Cat Stevens(don't know his new name)


[/quote]
Hi Robert. No, I didn't think you were implying that, but I just thought I'd clarify the situation for those people who like to believe in Big Brother :D

I think you're right about pinpointing certain individuals, but for the 'average' traveller there's absolutely nothing to worry about.

BTW, it's Yusuf Islam ;)

This were stuff gets blown out of context and becomes and urban myth. This has nothing to with 'holiday makers', but is about a retired reason who lied about his involvement with Nazis in the war. He was deported. But this is making his way into travels as 'holiday maker deported'.

It would be prudent to get original facts and not a version of a version that has been passed around the internet.

<blockquote id="quote" class="ffs">quote:Originally posted by chrizzy100
There was a topic on a hotal forum a bit ago about a woman out shopping and came back to her hotel to find her husband deported because he lied...she was very upset...she had no idea where he was..
Someone said that there are on going checks so if you are found out you could be deported at any time...they had from what i remember been in FL a good few days...


[/quote]