bungled

Quote:

Originally Posted by bungled

He seems to have a black mark against his name (hence ESTA denial also), with no reason given at his consular interview.

What I meant was that despite having entered the same answers on his ESTA as myself, he was denied due to some past record. It's the past record that they were not able to explain.

Quote:

Originally Posted by materialcontroller

Also, did they not recommend him for a waiver of ineligibility after denying him the B visa?

Yes this has been automatically submitted, but will take 4 months, obviously past our travel dates.

Quote:

Originally Posted by materialcontroller

So if I understand you correctly. Your husband was denied an ESTA. Did he declare his arrest as part of that application?

Now what about the B visa application. Did he declare the arrest on the application? Or did he only admit it in the interview when, in your own words, "They grilled him on whether he has ever done anything wrong, just to dig for a reason to deny the visa"? And if he didn't declare the arrest on the visa application, why not?

No and no, because he does not have a criminal record.

Quote:

Originally Posted by crg

The lack of a criminal ineligibility allows them to issue a visa without a waiver.

An overstay bar that has expired allows them to issue a visa without a waiver.

Nothing requries them to issue the visa. The consular officer makes the decision at his or her discretion. Even if the official agrees that the criminal ground doesn't apply, he can still deny the application for failure to overcome the presumption of immigrant intent.

The prior overstay, and the person's lost credibility when he previously overstayed and incorrectly answered "No" to the arrest question on the application gives them a golden opportunity to claim it calls each and every response on the application into question.

They have to believe the applicant is going to comply with the terms of the visa classification if granted. They often rely on the applicant's word that they will comply. The problem is that they may not believe this applicant's word is worth very much and probably don't like it when people misrepresent themselves on the application.

Thanks, this is clear. He should be able to substantiate that he is not intending to overstay with return flight paid for, work reference, contract, payslips, bank statements, lease agreements, reasons for visit and Australian movement records showing 10 years of lawful entry.

And with the criminal aspect, comment above applies. He does not have a criminal record and answered no, not trying to misrepresent himself.

BUT, he had no option to answer no to the following questions in the DS-160 (on advice from the consular office) on having been in the US before or had a visa before as he has no record, unable to complete visa numbers which are all required fields for the webpage to click through to the appointment scheduling.

Quote:

Originally Posted by Noorah101

Why was ESTA denied?


First you say no reason given for the denial....then you post the reason. So the reason WAS given.

Maybe you can change your tickets to bypass the USA and fly directly to Canada.

Rene

He expected to find out why the ESTA was denied, this is what they did not know. If they did, ie. if they had a record of the overstay issue as suspected, of which the bar has lapsed, surely they would have been able to issue the tourist visa (and assuming all other documentation substantiates return to home country).

Obviously, we can cancel everything and go to Canada instead at huge expense, and are looking into our worst case scenario options.



Thanks for the replies, it seems many of you have years of experience with these issues. From our persepctive, I have never been to north america and my husband hasn't been for 14 years. Things have changed in that time and unlike everyone on this forum, neither of us have any experience with this esta/visa process (as equivalent and onerous to applying for citizenship here, and we're talking about a 2 week holiday) or were even aware that we would need to go through all this until just two weeks ago. So please understand our naivety and confusion with the process.

Marocco

Again, the black mark is obviously due to his previous overstay.

The question does not ask about criminal records, it asks:

"Have you ever been arrested or convicted for any
offense or crime, even though subject of a
pardon, amnesty, or other similar action?"

In your husband's case, the answer should have been yes. So, either he did not understand the question, or he deliberately lied. In either case, it's not hard to see why his application was denied.

crg

Unfortunately, sticking with that rationalization will likely annoy the consular officer.

There is no question on the ESTA or visa application that asks about whether or not the person has a "criminal record".

Both questions ask about arrests, among other things. Therefore, answering "no" to the arrest question when the person has been arrested for theft and then sticking to it is not going to help make the consular officer sympathetic to the applicant. The burden of proof is on the applicant.

Words mean things. The applicant is not supposed to change the wording of the questions in their head to something they can answer "No" to.

I wish you luck though.

materialcontroller

But your husband wasn't entitled to give the same answers as you. He has a previous arrest for a crime involving moral turpitude (CIMT) as well as a previous overstay issue in the USA.

You are lucky they've recommended your husband for a waiver. They could just as easily have denied him outright. The fact it's going to take longer than you need is just tough luck unfortunately.

Neither the ESTA or visa applications ask about a criminal record. The ESTA asks if the applicant "has ever been arrested or convicted of a crime involving moral turpitude?" The DS-160 asks "Have you ever been arrested or convicted for any offense or crime..." Your husband has certainly been arrested so he should have answered YES to those questions. You can't answer NO just because he doesn't have a record - he was still arrested!!!

By putting your own interpretation on things, that's exactly what you've done. You have effectively lied on an immigration form.

Good luck rearranging your trip. Routing through Canada appears to be your only option of making the trip on the original timeframe now.

You've learned a very hard, painful and expensive lesson. Good luck to you.

christmasoompa

And just to check, but have you looked in to the criminal inadmissibility side of things for Canada? Canada is, believe it or not, even tougher than the US when it comes to a conviction.

Have a read of the following just to check and see if he needs criminal rehab to enter Canada - http://www.cic.gc.ca/english/informa...conviction.asp

Good luck.

Marocco

According to OP, her husband has no convictions.

bungled

Thanks for the replies.
Going back to the original question of the thread, which hasn't been discussed - supposing his second application for the tourist visa is refused, for either the CIMT or overstay reason (despite the ten year bar having lapsed), does that mean he will be automatically refused a transit visa for the same reason, or is it entirely down to the discretion of the consular officer (assuming proof of return to home country is accepted)? Thanks again.

materialcontroller

Your husband already has a pending tourist visa application, which is now at the waiver stage. So whether you agree or not, the US authorities have already found him inadmissible for travel to the USA. Making another tourist visa application will almost certainly have the same result.

Regarding the transit visa, have you looked at the State Dept guidance:

http://travel.state.gov/visa/temp/ty...s_4383.html#12

As far as I can gather from looking at that link, a transit visa is still subject to the same requirements as any other non-immigrant visa category. Therefore the fact that your husband is already deemed ineligible to enter the USA, could mean he would need a waiver of that ineligibility for the transit visa as well.