VISA Waiver Program to USA

[stevemilo]

Thanks heaps for all that info. So basically from what you have told me, no matter how long has passed, they cannot issue a visa without sending it to the DHS in Washington first. But on the plus side, they obviously were happy to issue you a visa and you had more then one criminal charge. Is that correct? The process sounds like a whole pain especially having to wait 5 weeks without a passport! Anyway, sorry you missed your flight out, but I guess you will know now to get a visa WWWWWAAAAAAAYYYYYY before you want to travel Thx heaps for the info!

 

[NewTraveller]

Visa Waiver Programme - Newbie

This is my first post.

I have never been outside Australia on travel, and am to pick up my first ever Australian Passport tomorrow, as never had one in my life. I am interested in travelling to the USA, via the Visa Waiver Programme. BTW, would I be wrong in assuming Passport applicants would have security checks done, so they dont hand them to criminals?

Here is my predicament, just under 10 years ago I got a "conviction not recorded" for petty theft in Brisbane (it was electric shaver - basically I bought one and went to get it exchanged for a better model and had to change floors for the process, so they assumed I stole it but had money on me - crazy story). I was given good behaviour for 6 months as well. Nothing has happened since. Hell I was employed by the QPS in Brisbane as Mail Clerk and they knew about it after it occurred.

I have read so many conflicting pieces of information regarding this Visa Waiver Programme, that I'm going crazy. The fact is "conviction not recorded" indicates to me your criminal record is clean, and no marks against your name - hence "not recorded". So, wouldnt I be right in saying no the "convictions" question on the VWP? If asked, I would tell them honestly what happened and what it was. Does Australia / US share this information, or do they rely on you telling them? Would the US really prevent me from entering their country because of a shaver matter almost 10 years ago?

I have had no other previous or later run-in's with the law. If any Legal people can advise the true stance on this, this would be greatly appreciated.

 

[NM]

Re: Visa Waiver Programme - Newbie

Welcome to AFF

I have read so many conflicting pieces of information regarding this Visa Waiver Programme, that I'm going crazy. The fact is "conviction not recorded" indicates to me your criminal record is clean, and no marks against your name - hence "not recorded". So, wouldnt I be right in saying no the "convictions" question on the VWP?

The question on the form reads:

Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

Its a yes or no question.

Firstly, was your offence one that falls under the category of "moral turpitude"? It does not seem to fir under any other category in the question. If it does fall under "moral turpitude", then it would appear that in order to get a "conviction not recorded" ruling you were likely arrested at some point in the process.

I don't know the full US legal system definition of "moral turpitude" so cannot tell you if what you have described falls under that classification or not.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

Welcome to AFF

The question on the form reads:
Its a yes or no question.

Firstly, was your offence one that falls under the category of "moral turpitude"? It does not seem to fir under any other category in the question. If it does fall under "moral turpitude", then it would appear that in order to get a "conviction not recorded" ruling you were likely arrested at some point in the process.

I don't know the full US legal system definition of "moral turpitude" so cannot tell you if what you have described falls under that classification or not.

This is the problem, there seems to be no clear definition to the meaning of "moral turpitude". From what I have read, its mainly to do with very severe crimes, like drugs, murder, rape, etc. I dont think "petty theft" of an electric shaver is classed as "moral turpitude", and not enough to not be allowed entry into the US surely. Or is this the idea to confuse you into guilt? This is driving me batty, and if someone who knows the US system, can verify this information and clear this up, it would help greatly.

 

[one9]

Re: Visa Waiver Programme - Newbie

This is my first post.

Here is my predicament, just under 10 years ago I got a "conviction not recorded" for petty theft in Brisbane (it was electric shaver - basically I bought one and went to get it exchanged for a better model and had to change floors for the process, so they assumed I stole it but had money on me - crazy story). I was given good behaviour for 6 months as well. ....

It was my understanding (at least from a NSW point of view) that to get a section 10 bond where you are found guilty but no conviction is recorded, that you need to plead guilty. So people don't really want to hear that you claim to be innocent. Your day in court is the time to prove your innocence.

Anyway, you will get different answers from different people. Many people will tell you that you should get a visa as its not worth the risk of getting refused entry. I think most likely you would get in on the waiver without a problem. In the unlikely chance that you were stopped, I think that if you told them that you thought that you did not need to declare an arrest where a conviction was not recorded as this is how it is in Australia & that given the fact that it was relatively minor and 10 years ago, they would let you pass. But if being refused admission was going to completely wreck the holiday of you & your traveling partner(s), then you may want to consider getting a Visa to avoid this from happening.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

It was my understanding (at least from a NSW point of view) that to get a section 10 bond where you are found guilty but no conviction is recorded, that you need to plead guilty. So people don't really want to hear that you claim to be innocent. Your day in court is the time to prove your innocence.

Anyway, you will get different answers from different people. Many people will tell you that you should get a visa as its not worth the risk of getting refused entry. I think most likely you would get in on the waiver without a problem. In the unlikely chance that you were stopped, I think that if you told them that you thought that you did not need to declare an arrest where a conviction was not recorded as this is how it is in Australia & that given the fact that it was relatively minor and 10 years ago, they would let you pass. But if being refused admission was going to completely wreck the holiday of you & your traveling partner(s), then you may want to consider getting a Visa to avoid this from happening.

This occurred in Brisbane and have lived in Brisbane for 20 years. My lawyer at the time recommended I say "guilty" in order to get the matter resolved with "no conviction" and to save extra costs. I paid the lawyer only after the judge and lawyer agreed to "no conviction" and I was told this would not be on my criminal record. This occurred almost 10 years ago, and no issues since or before. Yes I regret it but cannot change the past, I have learnt from it. The US love to make things so difficult with their antiquated and big brother laws. Surely the VWP programme checks any "torpitude" issues before being allowed to go to the USA? The problem with a full visa is there is no office in Brisbane. BTW I probably wont go on this trip for over a year.

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

Theft is classified under moral turpitude

if you have been arrested or convicted for theft, then I would be getting an appointment with the US Consulate for a visa

Dave

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

This is the problem, there seems to be no clear definition to the meaning of "moral turpitude". From what I have read, its mainly to do with very severe crimes, like drugs, murder, rape, etc. I dont think "petty theft" of an electric shaver is classed as "moral turpitude", and not enough to not be allowed entry into the US surely. Or is this the idea to confuse you into guilt? This is driving me batty, and if someone who knows the US system, can verify this information and clear this up, it would help greatly.

Moral turpitude covers a large range of things including theft; it does not relate to the severity of the crime but whether it is one where there would normally be intent to do wrong

With it being 10 years ago , I would think that you would probably be able to get a visa and given that you are not going for quite a while, hopefully will be able to find an opportunity to go to SYD/MEL and get a visa

Dave

 

[Blackadder]

Re: Visa Waiver Programme - Newbie

An arrest that does not lead to a conviction causes a person to be inadmissible to the United States if that arrest was for an offense or crime involving moral turpitude.

Theft, is considered a crime against property hence involving moral turpitude.
If you were just given a in store warning, then not a problem but seeing it went to court you will need the Visa.

 

[serfty]

Of course, the Queensland/Australian government may be prevented by law from providing any information about this to the US authorities due to "Spent" or "Passed" conviction legislation. I am not fully aware of how it works in QLD.

If this were the case then you could answer no and get admitted with no issues. YMMV.

What you could do is submit an ESTA. The checks required are done online and you'll know if you are approved before departing Australia. In any case it's up to you.

There's a lot more information in this thread: http://www.frequentflyer.com.au/com...-customs/visa-waiver-program-to-usa-6431.html

and the ESTA is discussed properly from here: http://www.frequentflyer.com.au/com...-waiver-program-to-usa-6431-6.html#post213054

 

[straitman]

Re: Visa Waiver Programme - Newbie

NewTraveller,

Over the last few years I have followed the discussions on Moral Turpitude with amusement. There are a lot of people who spout knowledge on the topic and who really are just talking through an area designed for other things.

The best thing you can do is look at what people are saying, have a look at the US legal definition (see link) and then make up your own mind as to where you fit.

In my opinion you probably need a Visa as Dave Noble and others have said though 9 FAM 40.21(a) N2.3-1 Crimes Committed Against Property b (14) may indicate otherwise.

Good luck.

 

[NM]

Re: Visa Waiver Programme - Newbie

An arrest that does not lead to a conviction causes a person to be inadmissible to the United States if that arrest was for an offense or crime involving moral turpitude.

Answering "yes" to any of the questions on the I94W form does not automatically make you inadmissible to the United States. The form states:

IMPORTANT: If you answered "Yes" to any of tyhe above, please contact the American Embassy BEFORE you travel to the U.S. since you may be refused admission into the United States.

The capitalisation and bolding are as per the form.

Note the words "may be refused", not "will be refused". And to me it implies "may be refused under the Visa Waiver Program". It does not say the person will automatically be refused a Visa to travel to the U.S.

The strange part is that most people don't get to see the questions on the I94W form until they are sitting on the aircraft, by which time its way too late to be contacting the U.S. Embassy.

But whether a conviction is recorded or not, even whether found guilty or not does not matter when one has been arrested for a crime involving moral turpitude. Just being arrested, even if released without charge, would technically require a "Yes" answer to the question and hence the need to "contact the Embassy". The embassy would then have several options:

• Inform the traveller they may enter the USA under the Visa Waiver Program and provide written documentation to support entry even though "Yes" must still be ticked on the form.
• Require a Visitor Visa application, which may then be granted or denied based on evaluation of the information provided on the Visa application and possibly at a personal interview.

Which of these pans out depends on how the Embassy staff interpret the information provided.

While I doubt the intent of the question on the I94W form is to prevent people such the OP from visiting the USA, the form is a legal document and should be completed honestly.

Here are a few web links that may help to understand the term "Moral Turpitude":

Moral turpitude - Wikipedia, the free encyclopedia
moral turpitude legal definition of moral turpitude. moral turpitude synonyms by the Free Online Law Dictionary.
WikiAnswers - What is moral turpitude

 

[Maca44]

Re: Visa Waiver Programme - Newbie

It's interesting that crimes against property which do not fall within the definition of moral tupritude include:
9 FAM 40.21(a) N2.3-1 Crimes Committed Against Property
(1) Davaging private property (where intent to damage not required);
(2) Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude);
(3) Passing bad checks (where intent [FONT=DNBGPB+Verdana,Verdana][FONT=DNBGPB+Verdana,Verdana]to defraud [/FONT][/FONT]not required);
(4) Possessing stolen property (if guilty knowledge is not essential);
(5) Joy riding (where the intention to take permanently not required); and
(6) Juvenile delinquency

They include breaking and entering as not falling within the definition of moral turpitude, but petty theft is included. Make you think

I think if you go to this website https://aus.us-visaservices.com/Forms/default.aspx it allows you to apply for a visa on-line, after paying (I think $17 by credit card), but when you answer the questions on the first or second page to see if you require a visa one of the questions is "have you ever been convicted of an offence" NOT arrested or charged. A friend went through this, and printed out the page to take with him to the USA, used the VWP and was not asked for anything, but he was ready just in case.

 

[chrisb]

Re: Visa Waiver Programme - Newbie

I have had no other previous or later run-in's with the law. If any Legal people can advise the true stance on this, this would be greatly appreciated.

Personally, having seen the argument in here I'd just go apply for a Visa - 99% chance you'll get one and you'll feel a lot more comfortable. It'd stress me out flying for 14 hours with the chance they'll just go "no, sorry" and send you back.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

This has been rattling my brain for a week so decided to drop an email to the US Embassy and below is their reply:-

"Thank you for your inquiry.

Theft is considered a crime of moral turpitude under U.S. immigration law.

The policy listed below, which allows Australians to not declare convictions after 10 years, to have a ‘spent conviction’, does not apply to the U.S. Under U.S. immigration law, all past convictions must be noted, regardless of the time passed or the severity of the offence.

Additionally, having no conviction recorded still means that the applicant has plead guilty to the offence, which is what we are concerned with. NOTE: This indirectly implies im a liar. Under Commonwealth Law you dont have a conviction (criminal record) if not recorded.

Based on the information provided, it is not advised that your friend answer ‘no’ when completing the ESTA application."

Then it goes on how to apply for a VISA (B-1/B-2 Business / Tourist Visa), which in itself is not that simple, as they ask where you plan to stay in the USA, well considering this trip is well over a year away, possibly two, I would not have a clue. My female colleague has asked me to go with her when she does.

In summary they want me to bend over backwards and dig up the past just for them. This is reverse Common Law - guilty till proven innocent. The fact is the matter resulted in "no conviction recorded" under Commonwealth Law, which takes precedence of US Law, as im a citizen of the Commonwealth. Plus the additional expense of going to Sydney for an interview, because they dont believe Brisbane is worthy of its own office - how convenient. I find it intruiging how people who are found drink driving and minor traffic violations are given the red carpet treatment.

Honestly, im being treated as a criminal, despite not having a criminal record. So, I don't know what to do in relation to this matter. I firmly believe any petty matters which result in "no conviction recorded" should entitle the person to visit the US based on the conditions of this verdict - not have the US say "stiff ****" and use coercion to do what they want. I also dont know the chances of a Visa being issue in relation to my matter, and no one can give me any idea of the outcome - all on hope. I find it intriguing that the country with the most imprisoned population, is telling me that something that occurred many years ago of a petty nature is severe enough to refuse my application under the VWP. The US system is a joke - literally.

 

[chrisb]

Re: Visa Waiver Programme - Newbie

Is Canada any easier to get into? It's like the US but nicer.

I didn't realise a US visa requires a trip to sydney! Being in Perth that's a bit of an issue...

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

This has been rattling my brain for a week so decided to drop an email to the US Embassy and below is their reply:-

"Thank you for your inquiry.

Theft is considered a crime of moral turpitude under U.S. immigration law.

The policy listed below, which allows Australians to not declare convictions after 10 years, to have a ‘spent conviction’, does not apply to the U.S. Under U.S. immigration law, all past convictions must be noted, regardless of the time passed or the severity of the offence.

Additionally, having no conviction recorded still means that the applicant has plead guilty to the offence, which is what we are concerned with. NOTE: This indirectly implies im a liar. Under Commonwealth Law you dont have a conviction (criminal record) if not recorded.

Based on the information provided, it is not advised that your friend answer ‘no’ when completing the ESTA application."

Then it goes on how to apply for a VISA (B-1/B-2 Business / Tourist Visa), which in itself is not that simple, as they ask where you plan to stay in the USA, well considering this trip is well over a year away, possibly two, I would not have a clue. My female colleague has asked me to go with her when she does.

In summary they want me to bend over backwards and dig up the past just for them. This is reverse Common Law - guilty till proven innocent. The fact is the matter resulted in "no conviction recorded" under Commonwealth Law, which takes precedence of US Law, as im a citizen of the Commonwealth. Plus the additional expense of going to Sydney for an interview, because they dont believe Brisbane is worthy of its own office - how convenient. I find it intruiging how people who are found drink driving and minor traffic violations are given the red carpet treatment.

Honestly, im being treated as a criminal, despite not having a criminal record. So, I don't know what to do in relation to this matter. I firmly believe any petty matters which result in "no conviction recorded" should entitle the person to visit the US based on the conditions of this verdict - not have the US say "stiff ****" and use coercion to do what they want. I also dont know the chances of a Visa being issue in relation to my matter, and no one can give me any idea of the outcome - all on hope. I find it intriguing that the country with the most imprisoned population, is telling me that something that occurred many years ago of a petty nature is severe enough to refuse my application under the VWP. The US system is a joke - literally.

The US visa system is not a joke.

Just because Australia has a peculiar concept where someone can be guilty of a crime and yet not have a conviction recorded shouldn't allow them to have some sort of back door special treatment for getting into the country. I am not aware of that many countries that allow convictions to be hidden

If someone commits a crime , then by definition that person is a criminal whether or not it was recorded

Dave

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

The US visa system is not a joke.

Just because Australia has a peculiar concept where someone can be guilty of a crime and yet not have a conviction recorded shouldn't allow them to have some sort of back door special treatment for getting into the country. I am not aware of that many countries that allow convictions to be hidden

If someone commits a crime , then by definition that person is a criminal whether or not it was recorded

Dave

I'm saying that this happened almost 10 years ago, and all because I went to get a shaver exchanged, and as long as I can prove the outcome as "no conviction recorded" I should be able to enter the US via the VWP. US Laws are not enforcable in the Commonwealth of Australia - therefore their laws cannot override Commonwealth Laws. I've learnt my lesson and nothing has occurred ever since. What should I do - pay a fortune to prove my point in Sydney on the hope a Visa is granted or not? No one can advise what my success will be.

 

[NewTraveller]

Re: Visa Waiver Programme - Newbie

BTW

Looks like I cannot even complete the online Visa (non-immigrant) application as 1. I dont know when I will be arriving and where I will be staying and 2 (haven't planned it yet). I dont have any US contacts. I will probably go with my female colleague, but this may not occur till 2011. What do I do - get in early or wait? It seems im stuffed no matter which way I do. I just want to visit the US with my female colleague, why so many unanswerable questions for a Visa?

 

[Dave Noble]

Re: Visa Waiver Programme - Newbie

I'm saying that this happened almost 10 years ago, and all because I went to get a shaver exchanged, and as long as I can prove the outcome as "no conviction recorded" I should be able to enter the US via the VWP. US Laws are not enforcable in the Commonwealth of Australia - therefore their laws cannot override Commonwealth Laws. I've learnt my lesson and nothing has occurred ever since. What should I do - pay a fortune to prove my point in Sydney on the hope a Visa is granted or not? No one can advise what my success will be.

The laws of the USA definitely override the AU laws as far as access to the USA goes.

They are quite within their rights to not be interested in any spent convictions schemes ; the fact that there was no conviction recorded is irrelevent as far as US Immigration is concerned

Given the time since the crime was committed and the nature of it , I would be surprised if a visa wasn't granted. Given the length of time before you plan to travel, are you likely to have a trip to MEL or SYD during which you can throw in a visit to the consulate

Dave