Criminal Record

[hurricanesarah]

Friend of mine has booked out in December with his wife and children. However he has a criminal record from a few years ago. We had a discussion last night and I thought that you couldn't travel under a visa waiver and whatnot if you DID have a criminal record?? He says hes never declared it before now and just walks through immigration anyway declaring nothing. I said now he has to be finger printed and this could be a problem. Any advise?????

OKay to add a little more, apparently he did time for perverting the course of justice in a case about an assault. Dont know much details sorry. Hope this enouhg information.

[Jill]

If you have a criminal record then you cannot go through on visa waiver and you do need to apply for a visa. If he has been through in the past and not declared it that is up to him but if he gets caught then he might not like the consequences.

[chrissb]

Hi Sarah

the rules are very clear: if you have been arrested even if the arrest did not lead to a conviction or if you have a criminal record then you are NOT eligible to use the visa waiver program and MUST apply for and be granted a visa. One of the major issues is that he has now left it very late to apply as he is going in December, so may not be able to get one in time. Up to now he has been able to get away with but to do so he has lied on the visa waiver form. Using the visa waiver is very convient but you have no right of appeal against the immigration officer's decision, and if he gets caught out then he will be deported on the next available flight. If you do a search on the forum for criminal records and convictions you will find that this is a topic that has come up several times. Your friend's decision is his to make but this is not a chance I would take.

[Iain Watt]

I read recently about someone that had previously over-stayed a visa waiver period by a few days. She was then refused entry on her next visit. This may be wrong but I'm sure she was then banned from returning to the USA for 10 years!!!

A harsh penalty just for a an over-sight.

Who knows what the penalty would be if they find out about an non-declared criminal record [?]

IMO I suspect it would be advisable to declare and get a visa.

[Jill]

Iain you are correct on the ban for 10 years I saw that as well. However they are now saying that for minor infringements such as a one off over stay for a couple of days they will be more lenient. I suspect this will depend on the guy on the desk and how jobsworthy he feels at the time.

[amy]

However perverting the course of Justice is not a minor infringement............I would be booking an appointment at the embbassy

[Nostromo]

One question on this situation. If Hurricane Sarah's friend now applies for a visa, coming clean and declaring the old Criminal Record, the US authorities will surely take note that he had entered the US before without declaring the record on dates AFTER the UK conviction took place. Will it then affect his getting a visa?

[Robert5988]

It is absolutely clear that he is not entitled to use the Visa Waiver Scheme!

In the past many have simply lied and got away with it and I suspect the current fingerprinting will not change the situation much as it still requires the Mark 1 eyeball to confirm fingerprint matches. However if the US authorities have serious reservations about him - the game is up!

There is another implication for all those who have lied and entered at any time in the past under the VWS. Sooner or later there will be the facility for automated routine comparison of the fingerprints obtained by US Immigration against, say, the UK CRO data bank. When, or if, that happens there will be big trouble for anyone who tries to re-enter.

Your friend faces a dilemma. If he now applies for a Visa it will almost certainly become apparant(Unless it was before the machine readable passports came into use) that he has previously breached the conditions of the VWS and entered the USA illegally. I suspect therefore his chances of getting a Visa will be slim.

The one glimmer of hope is the Rehabilitation of Offenders act. Whilst the Rehabilitation of Offenders act does not apply to the Visa Waiver Scheme under US law, it is still law in UK. It may be that this will affect the retention of information for ‘spent’ offences, and the release of any information by UK authorities.

Either way your friend is in a unenviable position.

[hurricanesarah]

Thank you for your advises. I spoke to his wife, one of my best friends today about your replies, and she says it was 8 years ago and he got off with a fine. He travelled to florida several times since then and has never declared anything so guess he's just been lucky so far?? But their intentions are to move to florida one day, not now but maybe a couple of years or so and i said really at this stage they should declare this? Do you have any other advise on this? I don't want to tell them to get the visa and then they get turned down when they could have just gone and chanced it or get them to chance it and then be sent home? they are awaiting your advises. Thanks ever so!

[Nostromo]

I think to 'chance it' under the current regulations would be a serious error of judgement. Reading others' experiences, not only would the chances of getting caught & declined entry be high, but it could also spoil your friends' future Florida plans. I think this is the time for him to come clean, declare the conviction, apply for a visa and hope for the best. If he is refused - and there is a chance of that happening due to his earlier infingements - there may at least be other avenues open to try later; the door may not be closed indefinitely. But to try to sneak in again (if you will forgive the expression) could be equivalent to shooting oneself in one's own foot.