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Gday guys, I'm looking to travel to the states later this year. I was arrested and charged with public drunkeness and resisiting back in 2009. I had never been in ...
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    New Member lukey999's Avatar
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    U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    Gday guys,

    I'm looking to travel to the states later this year. I was arrested and charged with public drunkeness and resisiting back in 2009. I had never been in trouble with the law before and have not since. In Victoria there is a diversion program in place which if successful in your application for it sees the case adjourned and later dismissed. I recieved a diversion and made a $100 donation to charity and was put on good behaviour for 3 months. I was told that the charges and diversion finding could only be accessed by the prosecutors office ( so that they could bring it up if I was ever in trouble again) but I would have no blemishes on my police record and no future employer would ever know.

    My question is how can the u.s immigration department have any access to this information if no one else can? I dont want to lie on the visa waiver but I feel that I would be cause more trouble for myself if i went through the visa application.

    Also i found on a u.s immigration website that public drunkeness does not constitute moral turpitude but I am not sure about resisiting police?

    any help would be greatly appreciated!

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    Established Member thewinchester's Avatar
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    Re: U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    Quote Originally Posted by lukey999 View Post
    <snip>
    Welcome.

    In broad terms - an immigration/border protection agency is able to verify a person's bona fides through arrangements with like agencies in other countries, and the ability for them to do so is granted by way of your entry documents into their country.

    It's simply a matter of them picking up the phone to their counterparts and asking the relevant questions. In theory, if crimes or activities don't appear on your federal criminal record check or within existing databses operated by the like agency, then there won't be anything for their counterpart agency to disclose.

    As to the second question of if the specific offence towards a law enforcement official might constitute an somthing that may have to be declared, and potentially render entry under VWP invalid - this is a question you are best directing to the embassy or consulate of the country concerned.

    In any case, as noted on the website of the US Embassy in Canberra, the VWP assessement process delivered online using ETSA is designed to assist you in determining if you will require a visa to enter the country.

    If you have further questions, then you should get in touch with the US Consulate or Embassy serving your area.
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    Re: U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    Quote Originally Posted by thewinchester View Post
    In any case, as noted on the website of the US Embassy in Canberra, the VWP assessement process delivered online using ETSA is designed to assist you in determining if you will require a visa to enter the country.
    That's good advice. If the ETSA process flags something, then it will direct you to make a more formal application.

    Best not to lie to the Americans (or any Government really). They know more about us all than we think!

    FTM

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    New Member lukey999's Avatar
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    Re: U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    Thanks for the advice guys... so are you saying that i should just fill out the online form and tick no to the question about arrests and convictions and if my past comes up on there system they'll just notify me to apply for a visa instead?

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    ftm
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    Re: U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    I would suggest declaring the arrest, because technically you were arrested. Here's a Q&A from the US Embassy website referred to by thewinchester:

    <H2 class=subhead_gray_h4>Q: I was arrested/convicted of a crime years ago. Can I use the VWP?

    A: ESTA will assess your eligibility for travel to the United States under the Visa Waiver Program. The assessment includes questions regarding previous arrests and/or convictions. If you have been arrested for or charged with a crime, including offences involving the use of a controlled substance, you may require a U.S. visa and, in some cases, a waiver of ineligibility. If you choose to apply for electronic travel authorization via ESTA, the system will advise you whether you must visit a U.S. Embassy or Consulate to apply for a visa. For further details on ESTA and to see if you are eligible for the VWP please refer to the ESTA Website.
    </H2>You may get some lee-way in the Visa Waiver Application questions if you weren't convicted, but you won't know that until you go through the application. In any case, you can still apply for a visa if it turns out that you are inelligible for the Visa Waiver Program. If that happens, it is really no different to years ago before the VWP existed where everyone had to have a visa.

    Others may recommend different, but I would be truthful and declare it. I doubt you're the only one who has ever entered the US with a similarly benign arrest/charge.

    FTM

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    Re: U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

    Thanks! really appreciate all your help!

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    If that happens, it is really no different to years ago before the VWP existed where everyone had to have a visa.
    Except for the USD140 cost to apply.

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    U.S VISA WAIVER - Arrest and Diversion but no conviction and no record

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    I think you've asked the right first question. Are those crimes of moral turpitude? If no and the question only refers to arrest for crimes of moral turpitude, then I think the answer should be obvious.

    In fact if the question is only about crimes of moral turpitude, you say yes on the basis of being arrested and those crimes were not moral turpitude. Then that would be a false declaration and a lie.

    I would suggest that you go to wikipedia and search for moral turpitude. That gives some decent background information. It also specifically lists the VWP question. There are a few elements:
    • arrested or convicted for moral turpitude
    • sentence for 2 or more offenses being greater than 5 years
    • arrested/conviction for controlled substances
    • planning to engage in criminal activity


    While not officially defined a list of moral turpitude offenses from the State Department are given. I'm not sure of the potential sentence for your offenses but I would guess less than 5 years. No for controlled substances. And I hope you don't plan to engage in criminal activity while over there.

    OT I like the offense of Mayhem. Sounds interesting.
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