movida

Around 13 years ago I was convicted of theft from employer, when I was 18 years old, sentenced to 80 hours community service. I have had no convictions since and put what happened down to sheer stupidity, having since progressed into a strong career and senior position.

Right after this incident I applied for and was denied a visa at the US embassy. I was probably barely equipped to try and defend myself or go about it the right way.

What I am confused about is when I researched this years ago, a CIMT would involve an embassy visit and a waiver could be granted with a short timescale. Reading up today it seems that a CIMT could mean an US based official needs to review the case, it could take 6 months and even then if granted one will only get a visa to then go through everything again next time. Is this correct?

When researching previously I read that if a CIMT was deemed a petty offence, it was somewhat simpler to be recommended for a visa without the added complication/6 month or so timescale. Having had only one offence, no prison time, is this a petty offence? The wording says something about the maximum sentence possible not exceeding 12 months. I haven't a clue what the max sentence could have been or how to prove it.

I will apply for an ACCRO Police Certificate. What else do I need to do, should I apply for the court records (how do I do that?).

It seems easier to go and see a London based immigration specialist to ensure I do this all the right way. However, to pay £1000's for a lawyer for what will probably be a long weekend trip to New York I'd ideally book, seems a bit silly.

Please advise me, I can see there's a very long thread on this but it's 250 pages!

Noorah101

The ESTA questions changed a few years ago. You should look at the application to see how you should answer them now.

Rene

movida

Thank you but there is no question regarding the fact that I cannot use an ESTA. I need advice on the above questions.

materialcontroller

I suspect that an ESTA application would not be approved due to you needing to declare the CIMT conviction as well as the prior visa denial.

You should get the ACRO certificate and apply for a B2 visa. You won't need the court records (unless you are specifically asked for them during the visa process), but it may be worth getting if you find it helps you to include all the relevant details on your visa application. You would need to write to the clerk of the court where you were convicted and ask them to provide that information.

If you needed a waiver of ineligibility for your visa they do seem to be being approved much quicker than six months recently. The official who interviews you and deals with your case will decide how to proceed and inform you accordingly.

Best of luck.

S Folinsky

General comments: a petty offense is an exception to the CIMT ground of exclusion. No waiver needed.

The analysis starts with whether or not the crime was a CIMT in the first place. Do note that UK summary of conviction can include multiple offenses under the same description, some which are CIMT's, some not. The actual court records are helpful.

Second, there are three elements in the definition of petty offense. One needs all three.

If not within the petty offense exception, then a waiver is needed.

Good luck.

Jamackabi

If you need a copy of the sentencing guidelines for theft, PM your email address and I can send this to you. A lot depends on the total value of goods, that goes towards figuring out the maximum sentence you could have received.

I was also convicted of theft, but I was sent to prison. I was approved for an IR1 Visa two weeks ago. Personally, I would order your Court papers as well as your ACRO. It's important to know as much information on your conviction as possible.

It's a shame you have been denied a Visa before, you would have been fine to apply for an ESTA. As mentioned above, the questions changed recently, and the question regarding convictions would not have applied to you:

"Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?"

I'm assuming like me, you hadn't caused serious damage to property or serious harm to another person or government authority. I have travelled twice a year on an ESTA since my conviction without any issues at all. But of course, you'd have to answer yes to being denied a Visa previously, which would probably mean another denial.

If you need any advice, give me a shout.

materialcontroller

You are incorrect. That isn't what the question actually means. It still refers to CIMT but is just worded differently, and this is made explicitly clear in the help notes that accompany the ESTA application. Therefore the OP would still need to answer YES to this question.

This forum does not encourage people to offer advice privately because, as in this case, incorrect or misleading information may be given. At least such things can be corrected when discussions take place openly, here on the public forum.

materialcontroller

Attached screenshot from the ESTA help notes.

Jamackabi

Interesting, I was asked if I had travelled on an ESTA with my conviction by a Consular Officer at the U.S Embassy in London two weeks ago. I said yes, and that I had answered no to this question because it didn't apply to me. The Consular Officer agreed, and approved my application. As with everything to do with U.S Immigration, this seems to be a grey area. On another day, this may well have got me in trouble. I took the question at face value, rightly or wrongly.


Apologies, I'll reword it. If you would like me to explain further my own personal experience, give me a shout.

crg

When denied 13 years ago, did the denial letter state that you were ineligible for 212(a)(2)(A)(i)(I), 214(b) or 221(g)? I understand that you may not recall.

An option would be apply for the visa with the court records and see what happens. When an 18 yr old with a recent criminal record applies for a visa, the path of least resistance is often to deny the application for failure to overcome the presumption of immigrant intent. That way, the consular officer doesn't have to review the record and research the offense to see if it's a CIMT or single petty offense.

Since you're more established, the consular officer is more likely to do the legwork and review the police record.

Theft is almost always a CIMT (joyriding and using a slug for a subway token are notable exceptions). If the definition of the theft offense includes the elements of intent, and 'mens rea' (guilty knowledge) then it's likely a CIMT.

The potential and actual sentence would then have to be reviewed. As others have pointed out, if it qualifies for the single petty offense exception, the consular officer can then skip the waiver as none is required.

It's not an especially grey area, just difficult to decipher and each locale may have different laws and they may be updated over the years. Even if ESTA were to be approved, you risk getting shipped back to sort it out at the consulate.

crg

Hi. Did you need an I-601 waiver for the theft conviction/prison time? If you needed a criminal waiver then the ESTA questions did apply to you. They may not have focused too much on the ESTA/VWP usage because there are other elements to the charge of fraud/misrep.

The current ESTA questions are even more poorly written than the previous version and the previous version was pretty bad. Willingly, knowingly misrepresenting a material fact to gain an immigration benefit is another charge, but the poor ESTA wording can put a kink into establishing the "willingly/knowingly" part.

Jamackabi

I did not require any waiver. I literally just read the question, felt that it did not apply to me because it doesn't, so answered no. I am certain there are many people with a not so squeaky clean record who have done and continue to do the same. The Consular Officer agreed, the question did not apply to me. I get the feeling he wanted to make something out of it, but he really had no argument. I suspect it'll be worded completely different/better the next time they revise the online ESTA forms.

crg

In general, if you didn't need a waiver for the underlying issue, then a false statement on the form would not have been a material fact since you would have been admissible on the true facts of the case anyway. So it's possible to have a CIMT, intentionally misrepresent it on an an application, yet still not have committed fraud/misrepresentation in an immigration context if it's not material (fits single petty or juvenile exceptions).

The question is worded so poorly, I wonder if they did it on purpose. Perhaps the vast majority of people who were checking 'yes' to the previous questions were mistaken and all of the actual criminals were just checking 'no' with a big smile on their faces.