Newbie question about VWP minor offenses ...

[xxterri]

Hi all,

I know there are a tonne of threads about this already which I have read through but still a bit unsure as to how I am going to go with my trip to America which is planned for a months time (Jan 2013)...

I am 25 years old now and when I was younger (the first time being 17 but was tried as an adult and the second time being 19) I stupidly thought it would be a good idea to shoplift. First time was from Myer and was less than $100 and the second time was from Kmart and was around $25 ... Both times I was taken to a room in the store, Police were called and I was given a notice to appear in front of a Magistrate. I attended both court dates and pleaded guilty but no conviction was recorded. Never had fingerprints or photos taken.

After reading through some of the discussions today, I'm hoping someone can give me some advice on whether or not I should hopefully be fine to apply for the VWP or if I am going to have to apply for a visa, get rejected and have to go through the waiver program which means I'll miss out on my trip with my sister for her 21st and lose any money that I've already paid!

I didn't even think of this until I happened to come across a question whilst I was doing some research about America and now I am sick to my stomach with my worry that I have stuffed everything up!

 

[an*g-bne]

I'll preface this by saying that I am not an expert or an authority in these matters, but do have a personal contact who works in the visa issuing section at one of the embassies (not Australia).

I'm afraid I don't think you're going to have very happy news. Shoplifting comes under theft, which is a crime of moral turpitude. The US has no concept of a non-recorded conviction, a guilty finding is still a conviction. This means that when you complete the ESTA, if you answer the relevant question honestly, you will be denied entry under the Visa Waiver program and asked to apply for a visa.

You can apply for a visa as it has been more than 5 years since your last conviction, and I suspect the visa will be granted due to the minor nature of the offences. However, current waiting times are reported as being around 6 months - much too late for your trip.

That's the honest approach. However, some thread searching does reveal some relevant questions about how much the US Immigration can actually find out about unrecorded or spent convictions. The questions raised are along the lines that if your police certificate says you have a clean record (you can order one online - when I requested one a couple of months ago, I received it overnight), unless you offer the information, how will US Immigration ever know? That does require you to be dishonest on the ESTA application however, and if found out, there will be severe consequences for you (e.g. denied entry, returned to Australia at your own expense, banned from entry into the US for a very long period). I point that discussion out not to encourage you to follow that path, but simply to highlight it.

 

[The Rok]

If I were you I wouldn't listen to the advice of strangers on the Internet for something like this!

However if I were you I would apply for a VWP and tick no to all questions, but that's just me!

 

[v8Statesman]

I'll preface this by saying that I am not an expert or an authority in these matters, but do have a personal contact who works in the visa issuing section at one of the embassies (not Australia).

I'm afraid I don't think you're going to have very happy news. Shoplifting comes under theft, which is a crime of moral turpitude. The US has no concept of a non-recorded conviction, a guilty finding is still a conviction. This means that when you complete the ESTA, if you answer the relevant question honestly, you will be denied entry under the Visa Waiver program and asked to apply for a visa.

You can apply for a visa as it has been more than 5 years since your last conviction, and I suspect the visa will be granted due to the minor nature of the offences. However, current waiting times are reported as being around 6 months - much too late for your trip.

That's the honest approach. However, some thread searching does reveal some relevant questions about how much the US Immigration can actually find out about unrecorded or spent convictions. The questions raised are along the lines that if your police certificate says you have a clean record (you can order one online - when I requested one a couple of months ago, I received it overnight), unless you offer the information, how will US Immigration ever know? That does require you to be dishonest on the ESTA application however, and if found out, there will be severe consequences for you (e.g. denied entry, returned to Australia at your own expense, banned from entry into the US for a very long period). I point that discussion out not to encourage you to follow that path, but simply to highlight it.

I applied for a B1/B2 visa in the last month and from application to getting Passport back was 6 days. This was in PER

 

[Mal]

I applied for a B1/B2 visa in the last month and from application to getting Passport back was 6 days. This was in PER

That's a standard business visa application isn't it? In the ops case I can see it being referred to the U.S for a determination (etc) thus the many months.

Up to the op to work out what they want to do. There are big risks either way and I certainly am not going to recommend one.

 

[v8Statesman]

That's a standard business visa application isn't it? In the ops case I can see it being referred to the U.S for a determination (etc) thus the many months.

Up to the op to work out what they want to do. There are big risks either way and I certainly am hot going to recommend one.

Joint Business/Personal Visa.

 

[xxterri]

Thanks for the responses guys, stupid me not thinking about this earlier and now putting myself in this predicament!

 

[flymetothemoon]

Yes, you should do the right thing and apply. No doubt you will have no problems getting it seeing as though it's been over 5 years. And as an*g-bne said "The US has no concept of a non-recorded conviction, a guilty finding is still a conviction".

 

[HarryB]

Personally, I would be getting a police check done and be guided by that. If nothing on there then I'd answer no, if it shows up then I'd be off to apply for a visa.

Seems odd that you would be tried as an adult for minor theft offenses if you are under 18 so worth checking that as well - maybe they were trying to scare you when you were told that. Either way, the second one would still be a potential problem but if it doesn't show up in the police report then I'd expect I was good to go as it is illegal for anyone (including police) to disclose anything more than what is on your police report.

Note: I am not a lawyer, I am just saying what I would do as its a calculated risk in my opinion.

 

[harvyk]

Personally, I would be getting a police check done and be guided by that. If nothing on there then I'd answer no, if it shows up then I'd be off to apply for a visa.

Seems odd that you would be tried as an adult for minor theft offenses if you are under 18 so worth checking that as well - maybe they were trying to scare you when you were told that. Either way, the second one would still be a potential problem but if it doesn't show up in the police report then I'd expect I was good to go as it is illegal for anyone (including police) to disclose anything more than what is on your police report.

Note: I am not a lawyer, I am just saying what I would do as its a calculated risk in my opinion.

I agree with this, ask for a police record for a visa, this will tell you exactly what the US has access to, and is the official record of what is done and said.

What ever you do, only tell the US about your arrest if you are required to, otherwise you may find you have shot yourself in the foot, whilest AU sometimes forget about the small things, the US never does.

 

[munitalP]

Don't tell them. My advice. If no conviction you shouldn't have a problem.

If you have been convicted, tell them


Simple and straight forward.