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Visa refused
Friends of ours were due to travel to Florida for the first time a few years ago. The husband had a conviction for public disorder with a few other of his mates, when he was in his early twenties. He is now in his forties and has a family with no other convictions since. He applied for the visa and went for his interview. The interviewer was very off with him and hummed and arred. Eventually he said he was refusing him the visa. Our friend was totally shocked and pleaded with him to reconsider for his childrens sakes, (he had already booked the holiday and didn't realise he would have to declare his convictions), the interviewer again refused and became quite arrogant with him. Our friend was so upset (he had travelled down and it had taken him 7 hours to get there, with a further 2 hour wait outside in the rain, and this was a couple of years ago), and in his exhausted frame of mind, he stupidly told the interviewer to "go to hell" or words to that effect as he walked off extremely upset.
If he re-applied for the visa, do you think it would be on record that he insulted the interviewer and is there any point in him re-applying. He regrets his reaction to the refusal. I wondered if it was worth suggesting to him to re-apply.
We feel really bad for him and his family, as we have been to Florida several times since then, and we don't tend to talk about how fantastic Florida is to him. But it would be great if they could come with us some time.
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Why did your friend try and apply for a Visa, he could probably have travelled on a Visa Waiver form. Visa are intended for visits over the 90 limit that a Waiver allows.
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I guess because he had a conviction, which I think means you can not rightly use Visa Waiver anymore, so have to apply for a proper visitor visa.
<blockquote id="quote" class="ffs">quote:Originally posted by Clare R
Why did your friend try and apply for a Visa, he could probably have travelled on a Visa Waiver form. Visa are intended for visits over the 90 limit that a Waiver allows.
[/quote]
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hi I got refused but reapplied and I got the visa ,each case is different, he could not travel on the waiver because of his arrest so he has to apply, it seems to me it depends on the mood of the staff because I have been to London 3 times refused once and got a visa twice so it is very random in my opinion, as for his remarks in his last interview I was told that they only judge on what is in front of them not on previous cases hope this helps
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I would recomend telling him to go to Belfast embassy, it is so much smaller and consequenlty more laid back in its approach.
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Thanks for your advice everyone; I will suggest that he trys again.
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Hi hilst it certainly must be frustrating for your friend to be denied a visa and thus access to all that Florida has to offer,it does make one think that if he cannot control his temper in front of a government official from whom he must have known it would have profited him to be of his "best behavior" ,then how on earth would he show self restraint in far more challenging circumstances that may arise against a third person if he did get to Florida?
You mentioned that it had taken him 7 hours to get to the embassy and 2 hours to wait for interview,well lord knows that those of us whom have traveled to Florida know that the flight itself is a minimum 8 hours with at least a further 2 hours to get through immigration along with over pedantic immigration officers most of whom are often rude ,then you have the extended wait for baggage claim and the rental car collection AND ALL this before you get onto the freeway.Even the most reserved of us are fractious and bad tempered by the time we arrive at our Florida destination!
Your friend with a previous conviction for a public order act offense which is defined as " Using or threatening aggressive abusive insulting words or behavior likely to cause harassment alarm or distress ",would appear a VERY likely candidate to present a problem to authorities or other holiday makers at any stage of their holiday.
Using the excuse that it was 20 years ago is hardly relevant when he still insists on being abusive and insulting to an American Official.
Using the excuse he was tired is also hardly credible when you take into consideration that we all have to go through that and more every time we travel to Florida.
Whilst i feel for the family and being a "hot head " myself at times ,this gent seems unable to control himself during the important time of an interview which would ultimately decide his access to the USA.
Maybe the official deliberately set out to wind your friend up and antagonize him to test his self restraint ......IT APPEARED HE FAILED,much to the detriment of his family.
People ,merely suggesting ways around getting a visa may not remove his anger management issues and MAY ultimately cause problems for holiday makers and home owners in Florida at a later date should he merely decide to show a distinct lack of self restraint and direct his anger at us .
Im sorry but i disagree with your underhanded suggestions to get people like this into Florida.
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<blockquote id="quote" class="ffs">quote:Originally posted by derek83
with at least a further 2 hours to get through immigration[/quote]
I don't know anyone who has taken at least 2 hours to get through immigration on arrival in Florida. Have you never got through in less than that?
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<blockquote id="quote" class="ffs">quote:Originally posted by alastair
<blockquote id="quote" class="ffs">quote:Originally posted by derek83
with at least a further 2 hours to get through immigration[/quote]
I don't know anyone who has taken at least 2 hours to get through immigration on arrival in Florida. Have you never got through in less than that?
[/quote]
Just 10 minutes or so this evening :D
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We landed last week at 14 40 and were in the car on the way to our villa at 15.20 a record for us
Eric
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When we went Christmas we also were en route to the villa within 30 mins of landing. Literlally 2 mins through immigration and th emost pleasant officer we have ever had. Made a huge difference not having to put the cases on the second carousel (you can't take trolleys on the transit but can now take your cases on), also Dollar Express whisks you to the front of the queue and saves even more time.
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Five minutes through immigration at Miami this Christmas for us very pleasant lady officer only asked 1 question (where were we staying).
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We also had a very quick passage through Miami immigration at Christmas, and the immigration officer was extremely pleasant. He also only asked one question about where we were staying and he gave us some great tips about Key West.
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I am a US Immigration Attorney in Birmingham, UK. The Embassy officials can be rather abrupt. The Embassy tends to be harsh on people with a conviction or even an arrest. To obtain the visa you need to show that you have strong ties to the UK and that you have not engaged in any criminal behaviour for the past five years. In many instances, the five year rule does not apply.
If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program. Even a person with a spent conviction requires a visa. He/she cannot travel under the Visa Waiver Program
Nilay
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<blockquote id="quote" class="ffs">quote:nshalaw Posted - 12 Mar 2008 : 16:19:20
--------------------------------------------------------------------------------
I am a US Immigration Attorney in Birmingham, UK. The Embassy officials can be rather abrupt. The Embassy tends to be harsh on people with a conviction or even an arrest. To obtain the visa you need to show that you have strong ties to the UK and that you have not engaged in any criminal behaviour for the past five years. In many instances, the five year rule does not apply.
If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program. Even a person with a spent conviction requires a visa. He/she cannot travel under the Visa Waiver Program
Nilay
[/quote]
Nilay, good to hear from you.
As an immigration attorney you can add a lot to this forum. The visa waiver rules are certainly open to interpretation, to say the least. I hope you're not just "passing through" as it were.
Would you mind, if you're still checking this thread, commenting on "once a visa, always a visa?"
I should give you a few more details - my lovely wife, innocent and blameless as a newborn, unfortunately managed to get herself a speeding conviction a few years ago (no arrest involved). She got a visa on the basis that the website says you need to apply if you have been arrested and/or convicted.
We have since decided that she should not have applied for a visa, as she can truthfully answer all the questions on the waiver form with a no, and we genuinely believe she's not really the intended target for a visa.
Her passport is coming up for renewal and if she does not get the visa renewed in the new one, can she go in visa free and sign the waiver? Or will there be problems...?
Appreciate your thoughts
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<blockquote id="quote" class="ffs">quote:If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program. Even a person with a spent conviction requires a visa. He/she cannot travel under the Visa Waiver Program
Nilay
[/quote]
I wonder if you could also comment please on a couple more points.
Most people on this site are aware of the entry on the US Embassy website for UK that clearly states if you have ever been arrested you need to apply for a Visa.
However there is of course absolutely no requirement for anyone to look at the website, or even know it exists; and in any case I understand it doesn't have similar wording about arrests in some US Embassy websites for other countries.
The vast majority of visitors simply look at the relevant question on the Visa Waiver form(I-94W) with its reference to "crimes of Moral Turpitude' and 'sentences of confinement of 5 years or more'.
Reading that question it is competely reasonable to answer No even if you have been arrested for a minor offence(or found not guilty). If the form meant "any arrest", why refer to crimes of Moral Turpitude and confinement?
Wading through the US regulations
http://www.cbp.gov/xp/cgov/travel/id...re/vwp/vwp.xml
There is nothing that I can see that stipulates an arrest of any sort disqualifies a visitor from entering under a waiver.
So my question:
Are you aware of any regulation that states unequivocally that any arrest means you cannot enter under a waiver? Obviously excluding the guidance(not regulation) in the US Embassy website for UK.
There is of course the suspicion that the US Embassy need to justify their staffing levels and unnecessarily dragging us to London(or Belfast) achieves that aim.
I did write formally to the US Embassy with that question and after promting got back a reply that completely evaded my question. Along the lines of "if you cannot understand the waiver form and regulations you should attend for an interview"
There are plenty of anecdotal tales of US Immigration officials at the point of entry simply not believing that people had applied for a Visa because they got arrested 30 years ago for a minor offence and were not even charged, or found not guilty.
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"However there is of course absolutely no requirement for anyone to look at the website, or even know it exists; and in any case I understand it doesn't have similar wording about arrests in some US Embassy websites for other countries.
There is a requirement though, Robert, for any person who wishes to travel to any Country in the World other than their place of residence to find out the entry requirement of that country and ensure whether they are eligible to travel or if a VIsa is needed.
Australia has for many years had the ETA requirement and it is up to an individual (whether via their travel agent or however) to ensure their compliance. Ignorance is not counted as an excuse, if a person is responsible enough to book an airline ticket they should also be capable of finding out if they need a Visa.
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<blockquote id="quote" class="ffs">quote:There is a requirement though, Robert, for any person who wishes to travel to any Country in the World other than their place of residence to find out the entry requirement of that country and ensure whether they are eligible to travel or if a VIsa is needed.
[/quote]
Absolutely - I couldn't agree more.
My point is that the formal regulations for entry requirement are contained in the US Immigration website link I gave and, unless I am much mistaken and have missed where it is laid down, that does not stipulate an arrest disqualifies you from entering on a Visa Waiver.
Why having read all the detail in that official site, would I seek further guidance from the US Embassy website in UK? As said above my further point was that I might not even know that website exists.
In any case the US Embassy websites in the various countries eligble under the Visa Waiver schemes give different guidance and all refer to the US Immigration regulations as their authority.
So from reading the official US Immigration website an arrest would not debar you from entry on a Visa Waiver.
Likewise reading the I-94W would not debar you from entry; unless you had committed a crime of moral turpitude or spent 5 years in Jail.
Apart from the above, it is patently absurd to to have the situation that any arrest, even in a case of mistaken identity, would deny someone the use of a Visa Waiver; and as far as I can ascertain the formal regulations do not stipulate that is the case.
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Have we frightened poor Nilay off?
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I've got a feeling Nilay is on vacation, but will be back in the office shortly, and no doubt will be back on the forum.
<blockquote id="quote" class="ffs">quote:Originally posted by Katys Grandad
Have we frightened poor Nilay off?
[/quote]
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Karen,
If you still read this post you may be interested in this definition of Moral Turpitude i found whilst reading another post.
http://en.wikipedia.org/wiki/Moral_turpitude
You may be interested in what is classed as not involving MT.
Oh and Derek83, let he who is without sin cast the first stone!
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You know, the more I read that question on the I-94W the more confused I get. I still read it as (arrested or convicted) for an offense or crime involving moral turpitude ... so ...
Have you ever been (arrested or convicted) for an offense or crime involving moral turpitude ...
rather than
Have you ever been arrested? Or have you ever been convicted for an offense or crime involving moral turpitude ... (my wording change to illustrate the point!!!!!!)
Wouldn't it be great if the INS reworded that question to make it clear one way or the other.
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<blockquote id="quote" class="ffs">quote:You know, the more I read that question on the I-94W the more confused I get. I still read it as (arrested or convicted) for an offense or crime involving moral turpitude ... so ...
Have you ever been (arrested or convicted) for an offense or crime involving moral turpitude ...
rather than
Have you ever been arrested? Or have you ever been convicted for an offense or crime involving moral turpitude ... (my wording change to illustrate the point!!!!!!)
Wouldn't it be great if the INS reworded that question to make it clear one way or the other.[/quote]
This is the point that I have been 'going on about' for the last couple of years on this forum, including earlier in this thread.
The UK Embassy website(which advises 'any arrest') just gives 'advice' and is not the regulation. Yet it is always quoted as the definitive regulation; which it quite clearly isn't.
I was almost arrested by mistake some years ago - long story but a car I had sold 2 months earlier was involved in a very serious crime; and the car was still on the DVLA database as mine.
Had I been arrested, and taken the advice in the US Embassy website as authorative, then I would have been ineligble to enter under a waiver. I still most certainly would have answered 'No' on the I-94W
I really do think that the US Embassy want people to apply for Visas to justify their staffing levels and get income; so their advice is biased in that direction. It is pertinent to add that some Immigration lawyers are quite happy with this situation!!
Can you seriously imagine that you would be refused entry to the USA if they discovered you had been arrested by mistake, or for a 'punch up' outside the Dog and Duck 30 years earlier?
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<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
Can you seriously imagine that you would be refused entry to the USA if they discovered you had been arrested by mistake, or for a 'punch up' outside the Dog and Duck 30 years earlier?[/quote]Yes, for the punch up, if it involved one of these apparently:
Assault (this crime is broken down into several categories, which involve moral turpitude)
Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm
Assault with a dangerous or deadly weapon
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Just my 2 penny worth:
It seems that a literal interpretation of the term 'arrest' (as distinguished from 'conviction') in the rules means that even the most unjustified or even wrongful arrest will suffice. That surely makes no sense at all. Further, does the arrest have to have been made by a police officer or would a citizen's arrest also meet the requirment?
Fianlly, how is it justified when there has been no prosecution or the outcome is acquittal?
Fortunately, I don't have this problem but I have sympathy with anybody who falls within this definition.
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Here's a really dumb question then around the arrest question ...
Does the one version of the I-94W accomodate all the countries that participate in the visa waiver programme? I.e. Are there no other versions (other than language translations) for different countries?
I'll give you the thinking ...
The Madeleine McCann case taught me the concept of an Arguido in Portugese law. I don't think we have a direct equivalent in the UK. If one were made an Arguido in Portugal one assumes that it would still be OK to answer No to the have you ever been arrested question? Does that sound sensible? Even in a situation as huge and a seemingly full of moral turpitude as Madeleine McCann.
I don't know Portugese law but would an arrest be the next step? Kind of like being charged in the UK? And if that's so, is an arrest in the UK more like being made an Arguido?
What if the question were phrased, have you ever been charged or convicted for an offense or crime involving moral turpitude ...
It would seem to make more sense to me that way. Whether it is legal under UK or European law (where people are assumed innocent until proven guilty) to include being charged would be a whole other debate.
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<blockquote id="quote" class="ffs">quote:Yes, for the punch up, if it involved one of these apparently:
Assault (this crime is broken down into several categories, which involve moral turpitude)
Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm
Assault with a dangerous or deadly weapon[/quote]
They are hardly the definition of a "punch-up outside the Dog and Duck" Blott.
Most public order offences that result in an arrest are dealt with by a fixed penalty or caution.(usually after a night in the cells to sober up!!) So there is no conviction.
<blockquote id="quote" class="ffs">quote:
9 FAM 40.21 Notes Page 4 of 27 U.S. Department of State Foreign Affairs Manual Volume 9 - Visas
Crimes committed against governmental authority, which would not constitute moral turpitude for visa-issuance purposes, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent do not involve moral turpitude. The following list assumes that the statutes involved do not require the showing of an intent to defraud, or commit other evil:
(1) Black market violations;
(2) Breach of the peace;
(3) Carrying a concealed weapon;
(4) Desertion from the Armed Forces;
(5) Disorderly conduct;
(6) Drunk or reckless driving;
(7) Drunkenness;
(8) Escape from prison;
(9) Failure to report for military induction;
(10) False statements (not amounting to perjury or involving fraud);
(11) Firearms violations;
(12) Gambling violations;
(13) Immigration violations;
(14) Liquor violations;
(15) Loan sharking;
(16) Lottery violations;
(17) Possessing burglar tools (without intent to commit burglary);
(18) Smuggling and customs violations (where intent to commit fraud is absent);
(19) Tax evasion (without intent to defraud); and
(20) Vagrancy
[/quote]
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<blockquote id="quote" class="ffs">quote:What if the question were phrased, have you ever been charged or convicted for an offense or crime involving moral turpitude ...[/quote]
Perhaps "charged AND convicted" would be better!
However the I-94W is clearly a nonsense! Moral Turpitude is not easily defined, and who had even heard of it; even under US law it is established by State court precedent.
I was reading up on this in some Florida case histories and really serious offences are not considered to involve moral turpitude. One was for man with his third conviction for DUI(driving under the influence) where serious injury was involved. This did not involve Moral Turpitude apparently because it was not his intent to injure anybody.
However we are in danger of getting side tracked a little from the 'arrest' advice on the US Embassy website. There seems to me to be no possible reason why someone arrested and not charged, or found not guilty, is not eligble for entry under a visa waiver.
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There are a couple of points.
Statutes are meant to be interpreted. Not every single crime is included because of practicality. Can you imagine a statute that defines homicide by every potential method of killing someone. The laws are interpreted through caselaw. The phrase "Crime involving moral turpitude" is vague simply because it gives the USCIS and the judges more freedom to interpret.
FOr US Immigration laws, many crimes which are misdemeanors in criminal law have been interpreted as felonies. One startling example is of a man around 40 who grew up in the US since being an infant. As a teenager, he was arrested twice for jumping a turnstile to use the subway in NY. He applied for US Citizenship. Not only was he denied citizenship, he was placed in removal proceedings. Removal is similar to deportation. Technically, people who steal cable in the US are guilty of committign a crime involving moral turpitude. It may seem like a harmless crime but it can be argued that it is larceny.
Remember, ignorance of the law is no excuse. Although, you are absolutely right in that a person does not have to read the website or conduct extensive research to find out whether or not he/she is qualified to travel under the VWP. The biggest problem I have is with travel agents. From my experience, what my clients have told me, many travel agents do not inform would be travelers of the effects of having a criminal history.
Unfortunately, I cannot explain why different Embassies have different information on their websites.
The I-94W also is silly because I believe that it does not state anything about spent convictions. Therefore, even if you are committed of a crime involving a moral turpitude and is now spent. A person who otherwise would have said yes may not because it is spent. According to English law, this conviction does not "exist". It is treated as it never happened. A person may not need to discolose this conviction.
Unfortunately, there was a death in my family. This is the reason why I did not respond.
Nilay
<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
<blockquote id="quote" class="ffs">quote:If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program. Even a person with a spent conviction requires a visa. He/she cannot travel under the Visa Waiver Program
Nilay
[/quote]
I wonder if you could also comment please on a couple more points.
Most people on this site are aware of the entry on the US Embassy website for UK that clearly states if you have ever been arrested you need to apply for a Visa.
However there is of course absolutely no requirement for anyone to look at the website, or even know it exists; and in any case I understand it doesn't have similar wording about arrests in some US Embassy websites for other countries.
The vast majority of visitors simply look at the relevant question on the Visa Waiver form(I-94W) with its reference to "crimes of Moral Turpitude' and 'sentences of confinement of 5 years or more'.
Reading that question it is competely reasonable to answer No even if you have been arrested for a minor offence(or found not guilty). If the form meant "any arrest", why refer to crimes of Moral Turpitude and confinement?
Wading through the US regulations
http://www.cbp.gov/xp/cgov/travel/id...re/vwp/vwp.xml
There is nothing that I can see that stipulates an arrest of any sort disqualifies a visitor from entering under a waiver.
So my question:
Are you aware of any regulation that states unequivocally that any arrest means you cannot enter under a waiver? Obviously excluding the guidance(not regulation) in the US Embassy website for UK.
There is of course the suspicion that the US Embassy need to justify their staffing levels and unnecessarily dragging us to London(or Belfast
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The VWP is not a right - just a privilege countries have given to nationals of certain countries.
<blockquote id="quote" class="ffs">quote:Originally posted by Robert5988
<blockquote id="quote" class="ffs">quote:There is a requirement though, Robert, for any person who wishes to travel to any Country in the World other than their place of residence to find out the entry requirement of that country and ensure whether they are eligible to travel or if a VIsa is needed.
[/quote]
Absolutely - I couldn't agree more.
My point is that the formal regulations for entry requirement are contained in the US Immigration website link I gave and, unless I am much mistaken and have missed where it is laid down, that does not stipulate an arrest disqualifies you from entering on a Visa Waiver.
Why having read all the detail in that official site, would I seek further guidance from the US Embassy website in UK? As said above my further point was that I might not even know that website exists.
In any case the US Embassy websites in the various countries eligble under the Visa Waiver schemes give different guidance and all refer to the US Immigration regulations as their authority.
So from reading the official US Immigration website an arrest would not debar you from entry on a Visa Waiver.
Likewise reading the I-94W would not debar you from entry; unless you had committed a crime of moral turpitude or spent 5 years in Jail.
Apart from the above, it is patently absurd to to have the situation that any arrest, even in a case of mistaken identity, would deny someone the use of a Visa Waiver; and as far as I can ascertain the formal regulations do not stipulate that is the case.
[/quote]
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<blockquote id="quote" class="ffs">quote:Originally posted by nshalaw
The I-94W also is silly because I believe that it does not state anything about spent convictions. Therefore, even if you are committed of a crime involving a moral turpitude and is now spent. A person who otherwise would have said yes may not because it is spent. According to English law, this conviction does not "exist". It is treated as it never happened. A person may not need to discolose this conviction.
Unfortunately, there was a death in my family. This is the reason why I did not respond. [/quote]Sorry for your loss.
According to the US Embassy website though, it states quite clearly that the Rehabilitation of Offenders Act does not apply to U.S. visa law which presumably means that no conviction can be regarded as spent in relation to US visa law? If so, it should make this clear on the I-94W because, as you say, British people will assume that crimes spent years ago no longer count.
I agree, the I-94W is very misleading and ambiguous as it could either mean
'Have you ever been charged OR......' (in other words it's a two choice question of one or another)
or alternatively
'Have you ever been CHARGED OR CONVICTED OF....' (which would infer that it meant both charged AND convicted).
Surely, though, if it was meant to be the second interpretation, then it would be better to say 'charged AND convicted' if it just referred to crimes of moral turpitude?
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Nilay
Sorry for your loss.
I personally have always interpreted it to mean that the arrest is linked to a crime of moral turpitude since there is no comma to indicate that it is an either or offense but
"have you ever been arrested or convicted for an offense involving moral turpitude"
as opposed to
"have you ever been arrested, or convicted for an offense involving moral turpitude."
The fact that they mention incarceration totalling 5 or more years implies it should mean for more serious offenses you would expect but as Nilay says is open to interpretation.
The questions asked I think are definitely a bit ambiguous to allow flexibility in their interpretation of to give leeway for refusal or charges to be brought it you are found to have made an untruthful response.
Why else would it ask if you are or have been a member of a terrorist organisation or if you have been involved in terrorist activity? It is hardly a question that anybody trying to enter the Country is going to answer yes to is it?
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<blockquote id="quote" class="ffs">quote:Why else would it ask if you are or have been a member of a terrorist organisation or if you have been involved in terrorist activity? It is hardly a question that anybody trying to enter the Country is going to answer yes to is it?[/quote]
As you imply, I did hear a rational explanation for that particular question. It is that not all terrorist organisations, as defined by the United Nations, are proscribed under USA legislation. So it is not an offence per se to be a member of such an organisation.
However you have committed an offence by answering 'No' on the I-94W.
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Nilay,
Thank you for your comments and I am sure we would all agree about the I-94W being silly.
However the question I asked was about your statement.
<blockquote id="quote" class="ffs">quote:If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program.[/quote]
To be absolutely specific can we take 3 examples:
1. Someone arrested in a case of mistaken identity and released without any further action.
2. Someone arrested for disorderly conduct, not charged, but the offence dealt with by caution or fixed penalty.
3. Someone arrested, charged and found not guilty.
Is it your advice that in all, or any, of those cases that you cannot travel under the Visa Waiver Program?
If so is that laid down in any regulation? or just the quoting the advisory notes in the US Embassy website(UK version!)
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Am I not correct in thinking that for "Human rights" or similar reasons if you are arrested in the UK but no charges are bought this information is removed from all files after a certain period of time? also once any conviction is spent after a certain period of time the information is again removed. If this is the case how are the US able to check this information? Would it not be a violation for them to have this information?
Just a thought
G
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"If this is the case how are the US able to check this information? Would it not be a violation for them to have this information
It's not so much a case of a violation of your human rights, it is their Country to decide rights of admission and a persons wish to visit there means that they have to abide by those regulations that the Country has decided upon. In the case of the USA they do not recognise the "rehabilitation of offendors act" and no conviction by their rules is ever regarded as spent. The onus is on the individual to be honest in their declarations of their past and not the USAs ability to check it.
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It is a pity that Nilay the US immigration lawyer hasn’t come back to substantiate his statement:
<blockquote id="quote" class="ffs">quote:If a person has ever been arrested, he/she cannot travel to the US under the Visa Waiver Program[/quote]
If you happen to live in Ireland(even if you were English) it would be reasonable for you to look up the regulations on a Visa Waiver from the US Embassy in Dublin. These are contained in this publication:
http://dublin.usembassy.gov/nivwaiver.html
If you have any doubts about your eligibility, you are referred to this US Government publication:
http://www.travel.state.gov/visa/frv...ties_1364.html
To save you going to the link, below is the relevant quote on criminal grounds; there are further sub-paragraphs on terrorism and controlled substances:
<blockquote id="quote" class="ffs">quote:(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).
(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.[/quote]
The important point is that there is nothing in this US Government regulation(or anywhere else as far as I can see) that indicates an arrest disqualifies you from using the Visa Waiver scheme. Indeed after reading this regulation, the relevant question on the I94-W makes a lot more sense.
I wonder if Nilay would comment please.
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Robert
Nilay did mention that he had a death in the family which I think we all understand would take precedence over answering questions well actually not necessarily definitively as has said himself are his interpretation based on case law.
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Steph,
Its not a problem about the delay in him commenting; I just hope that having made such a definitive statement(remember he is a lawyer), that he clarifies the situation; even with 'case law' if he feels that is required.
Over the past few years this whole subject has caused huge 'Angst' for many people.
Some have cancelled their 'holiday of a lifetime' for a trivial offence committed many years ago. Others have had to travel to London(or Belfast) spend a great deal of time and money to obtain a Visa. Some have even hired immigration lawyers!!!
Many posters in this widely read Forum have spread the message that any arrest means that you cannot enter the USA on a Visa Waiver.
Indeed many have argued very strongly that any conviction meant you required a Visa.
It is clearly nonsense to suggest that someone arrested in a case of mistaken identity, or found not guilty, cannot use a Visa Waiver.
Despite the disclaimers on this Forum, many readers understandably believe they are getting advice from experts; which of course most of the time they do get.
Having, for years, spread what would appear to be incorrect information, surely this Forum has some moral responsibility to try and get definitive answers
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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.
