Visa refused

[blott]

<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?

[steph_goodrum]

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?

[Robert5988]

<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.

[Robert5988]

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!)

[hillgj1]

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

[steph_goodrum]

"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.

[Robert5988]

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">quote2) 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.

[steph_goodrum]

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.

[Robert5988]

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

[steph_goodrum]

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.