US Visa question - Regarding court findings

[davidj-bell]

What evidence do you have to base such an assertion about whether the visa would be approved?

Getting a visa interview ime takes a few days to arrange in Australia

Dave

I never said it would nor would not be approved, I said it might not be approved, and if it doesn't get approved, then other consequences will follow on from that (ie, he'll always have on his record for the next US trip that a visa was denied), so that the OP should think carefully about his course of action.

If the OP wants a safer plan, then fly to Canada and use the land border, if they turn him away, it's only back to Canada, not back to AU.

OK, I might have been a bit hyperbole regarding the timeframe to get an interview, but that is just part of the process, the OP still needs to get the visa, and the US government is not bound to process the application at any speed, and I would guess his flight would have left before the visa arrived.

What I'm trying to suggest to the OP is that he get his private police record to see what's on it; if there is nothing on it, he should not get a visa, as it will just cause him lots of problems. [My sister got a US visa in her passport (she was living in Canada, and was told she'd need to get a US visa, rather than use the visa waiver program), but everytime she crosses the border she gets "extra" treatment, as only "crooks, drug runners and international terrorists" need visas. She's since discovered that the advice was incorrect, but it doesn't mean she has an easier time getting into the US]

If the OP can avoid having to get a visa, it will make his life easier, even if it does mean he has to be "a bit economical with the truth"; as long as the private police record is blank, then the US government won't know about his past either (assuming he hasn't told them previously).

 

[Maca44]

If you were under 18, my understanding is that all records are destroyed when you turn 18?

This is wrong..if you are charged with a criminal offence then that criminal history remains on file. From memory, I think it is 99 years, or that might be how long a Warrant remains in existence, but in any event your criminal history does not get destroyed. From experience (and I hope it doesn't offend), but (NSW) the fingerprinting of juvenile offenders was sometimes the only way we could identify bodies that died from a drug overdose.

 

[davidj-bell]

This is wrong..if you are charged with a criminal offence then that criminal history remains on file. From memory, I think it is 99 years, or that might be how long a Warrant remains in existence, but in any event your criminal history does not get destroyed. From experience (and I hope it doesn't offend), but (NSW) the fingerprinting of juvenile offenders was sometimes the only way we could identify bodies that died from a drug overdose.

OK, some real facts, from the Victorian police website (obvioulsy this may differ in other states).

• If the individual was an adult (eighteen years or over*) when last found
guilty of an offence and ten years have elapsed, no details of previous
offences will be released.

• If the individual was a child (under eighteen years*) when last found guilty
an offence and five years have elapsed, no details of previous offences will
be released (Exception: Court orders on care / protection applications will
not be released regardless of the age of the order)

* The age jurisdiction of Criminal Division of the Children’s Court was increased on the 1st of July 2005 in accordance with the Children and
Young Persons (Age Jurisdiction) Act 2004. This amendment is not retrospective and offences committed prior to this date will be released in
accordance with the previous age jurisdiction of 17 years (revised02/06).

There are a few exceptions for some serious sexual crimes, or working with children (which don't apply to the OP).

Also,

Findings of guilt without conviction and findings of guilt resulting in a good behaviour bond are findings of guilt and will be
released under this policy.

Victoria Police - Release Policy

Note, I'm not a lawyer, so don't rely on this advice!

 

[ranger]

If you actually go to the official ESTA website & read thru "Do any of the following apply to you ".........in Part B it seems like they do not apply to you..
Part D may apply if you are seeking work there.

It is worth a look.

 

[Maca44]

If you actually go to the official ESTA website & read thru "Do any of the following apply to you ".........in Part B it seems like they do not apply to you..
Part D may apply if you are seeking work there.

It is worth a look.

Part B clearly states "Have you ever been arrested or convicted for an offense....". It is the word "arrested" that causes the majority of problems when considering whether or not a person can use the Visa Waiver Program when entering the USA. Another thing some people don't seem to consider is that what might be considered okay/legal etc in Australia is completely different in the USA, and it is what the USA want that determines whether or not you should apply for a visa. If "arrested" then apply.

 

[NM]

OK, some real facts, from the Victorian police website (obvioulsy this may differ in other states).

What information the Victoria Police Department will release is not relevant when it comes to answering the questions on the US I94W form - unless someone is planning to make a false declaration hoping to get away with it based on the assumption the US officials will not know.

Whether or not previous details are removed from your criminal record, never were recorded, or are just not released after a certain time, does not change the requirements to answer the questions on the I94W form honestly. The questions provide no ambiguity, using words including "ever" and "arrested or charged".

 

[davidj-bell]

What information the Victoria Police Department will release is not relevant when it comes to answering the questions on the US I94W form - unless someone is planning to make a false declaration hoping to get away with it based on the assumption the US officials will not know.

Whether or not previous details are removed from your criminal record, never were recorded, or are just not released after a certain time, does not change the requirements to answer the questions on the I94W form honestly. The questions provide no ambiguity, using words including "ever" and "arrested or charged".

It's relevent only to the degree that, if the OP wants to be economical with the truth, that there is nothing that can be used as evidence - so yes, this assumes being a bit economical with the truth.

We're coming to this from different angles, you're saying he should be sucrupously honest, I'm suggesting he shouldn't be that honest. But it's ultimately up to him.

 

[Dave Noble]

It's relevent only to the degree that, if the OP wants to be economical with the truth, that there is nothing that can be used as evidence - so yes, this assumes being a bit economical with the truth.

We're coming to this from different angles, you're saying he should be sucrupously honest, I'm suggesting he shouldn't be that honest. But it's ultimately up to him.

You mean deliberately LIE on a form for request to enter the USA. That, to me, is one of the worst suggestions to make; that is a way to end up getting barred for a v long time/permanently from the country

Dave

 

[harvyk]

You mean deliberately LIE on a form for request to enter the USA. That, to me, is one of the worst suggestions to make; that is a way to end up getting barred for a v long time/permanently from the country

Dave

Whilst my official advice is "speak to a lawyer", IMHO any acts committed by a person under the age of 18 does infact allow the person to answer "no" to such questions when asked as an Adult.

The reasoning behind this is that laws understand kids can do stupid things which a person would never do as an adult. Thus the laws for a minor allow for this, so that the minor is punished in the immediate term but not the future adult.

 

[davidj-bell]

You mean deliberately LIE on a form for request to enter the USA. That, to me, is one of the worst suggestions to make; that is a way to end up getting barred for a v long time/permanently from the country

Dave

If you want it summed up in one word, then yes. From the start, I suggested that if he wanted my honest opinion, he should avoid getting a visa if he could.

what I also suggested was that he get his semi-public police record, to see what is on the file. From this, if it is clean, then I don't think he should apply for a visa, and yes lie on the form (knowing that the US authorities can't prove he's lying, assuming he hasn't told them). If the record does contain something, then he has to get a visa. If he gets a visa now, then he'll have to get a visa for the rest of his life. And now or at any time in the future, the application may be rejected. If he can avoid this, then I think he should.

From what I can gather from his posts, he's only 24, hopefully has put his teenage ways behind him, and he's got the rest of his future to be an upstanding citizen. We've probably all done things in our youth that we're not proud of, so I don't think he should burden himself of of the stupid things he did as a teenager, especially given that, depending on the laws of his state, his record might have been wiped clean.

My advice to the OP is to think very carefully about the consequences of having to get a visa, especially given that the immigration do look at those that have a visa from a visa-waiver country differently from those that don't have a visa.

But ultimately, it's up to the OP what he does, and any actions he takes (or doesn't take), he has to wear the consequences, including taking any advice from anyone on this forum.

 

[Dave Noble]

Whilst my official advice is "speak to a lawyer", IMHO any acts committed by a person under the age of 18 does infact allow the person to answer "no" to such questions when asked as an Adult.

The reasoning behind this is that laws understand kids can do stupid things which a person would never do as an adult. Thus the laws for a minor allow for this, so that the minor is punished in the immediate term but not the future adult.

There is nothing on the visa waiver form that exempts events that occured prior to the age of 18. It is a very simple question that is asked and is not ambiguous

If not having committed any offences since, it seems mad to start down the wrong track again now by lying on immigration documents

Dave

 

[Dave Noble]

From what I can gather from his posts, he's only 24, hopefully has put his teenage ways behind him, and he's got the rest of his future to be an upstanding citizen. We've probably all done things in our youth that we're not proud of, so I don't think he should burden himself of of the stupid things he did as a teenager, especially given that, depending on the laws of his state, his record might have been wiped clean.

It is not up to him to decide what can and cannot be ignored. It is a request to enter the United States of America and it is *their* choice to decide what they will ignore but it is the person wanting to travel responsibility to answer HONESTLY to the questions asked

My advice to the OP is to think very carefully about the consequences of having to get a visa, especially given that the immigration do look at those that have a visa from a visa-waiver country differently from those that don't have a visa.

Even more important is what would be the impact if he lies on the form and it is found out. If unable to TRUTHFULLY answer NO to the questions on the I94-W , then apply for the visa

Dave

 

[opusman]

It seems slightly ingenuous to suggest that he should put his teenage ways behind him and make a fresh start by lying to US immigration.

 

[harvyk]

There is nothing on the visa waiver form that exempts events that occured prior to the age of 18. It is a very simple question that is asked and is not ambiguous

If not having committed any offences since, it seems mad to start down the wrong track again now by lying on immigration documents

Dave

You obviously missed the fact I said speak to a lawyer.

I don't know what you do but I for one am an IT guy, not a lawyer, thus I wouldn't be taking legal advice from me beyond general advise about software licensing. My opinions are created due to speaking with lawyer friends of mine, but a couple of hours sitting at the pub with these guys will not replace 3, 4, 5 years of legal training.

Even if you Dave Noble is a lawyer, you don't know the full story, and I doubt that the OP would be placing the full story up here without some sort of legal privledge in place. (I know I wouldn't).

Just finally the problem is that words in their normal meaning can hold a very different meaning when put into a legal context, it's oftan this misunderstanding that gov'ts rely on to obtain information they didn't have a right to know. For example "ever" may mean since the beginning of time, or it may mean since you have came of age. Without knowing all the laws behind the document, including laws placed onto the document by both US courts and any other applicable courts and their actual legal meaning the OP could be admitting to something which they where legally permitted to hide.

 

[harvyk]

I should point out I'm big on getting lawyers advice, things are far less likely to come back and bite you later on if you get the advice first.

The idea of handing over information when you do not legally need to hand over that information, especially when it's information that you do not legally need to hand over does not sit well with me. That said, I'd only ever withhold information on the advice of a lawyer.

 

[serfty]

I have made many posts on this topic regarding "Spent" or "passed" convictions on this forum.

(Do a search if you will)

With very few exceptions, it is illegal for any Australian government authorities (state or federal) to disseminate information regarding such spent or passed convictions. The few exceptions are almost entirely between Australian Government authorities.

Passing of information regarding such spent or passed convictions to non Australian Government Authorities, such as any USA government authority, is certainly against these regulations.

What davidj-bell is indicating that if one has a spent or passed conviction it is extremely unlikely that any non Australian authority, including any from the USA, would have, or could garner any information about such (certainly not in any legal sense).

So it may indeed be a low risk strategy to lie on the I94-W form in relations to spent or passed convictions.

It is up to those in such situations to consider this carefully.

 

[Dave Noble]

It seems slightly ingenuous to suggest that he should put his teenage ways behind him and make a fresh start by lying to US immigration.

I found that idea amusing too

Dave

 

[davidj-bell]

It seems slightly ingenuous to suggest that he should put his teenage ways behind him and make a fresh start by lying to US immigration.

Perhaps. But the OP asked for advice, and he's received a range of advice, it's now up to him to determine his next step. I think there is nothing more to say on the matter.

 

[serfty]

Here's quite a good post regarding this issue:

http://www.frequentflyer.com.au/com...waiver-program-question-14757.html#post193042

 

[zetski210]

To the OP; I've been through the process and it's as follows:


If you have ever been arrested (for crimes of moral turpitude) you MUST declare it to the US consulate.

Theft is moral turpitude.

By their laws, any arrest constitutes an immigration conviction. It does not matter what the court outcome was by Australian law, if you were officially arrested, you need to apply for a visa.

Get a Police record that displays the individual charges and outcomes. A Victorian Police VISA record does not disclose the outcome of non-(criminal) convictions. You need a personal record for the US consulate.

You will most likely be denied a visa due to criminal history.

You then apply for a waiver, which takes many weeks and they hold your passport during this time.

If your arrests were only minor and no criminal convictions exist, you have good chances of being granted a waiver.

If you get a waiver, you get a temporary visa (up to 12 months).


For each new trip into or over the US, repeat all the steps above.

More information can be found here, if you wade through the legal jargon.