InnerFish

Long story short, my partner has visited the US under the VWP on a number of occasions over the past 16 years. We now realise they should have had a B2 for a previous CIMT conviction.

We would like to enter the US legally, but I wonder if applying for the B2 would just open whole can of worms and be unlikely to succeed due to the previous unlawful entries. They did not deliberately lie, but I suppose this would be down to the embassy's discretion.

Does anyone have experience of this or advice? Do we need a lawyer?

Thanks.

scrubbedexpat099

First is it a CIMT or you think it might be?

What did they do?

InnerFish

According to Google we think it is, although it was 20-odd years ago and we're not sure about the actual charge. So we'll need to look in to that. BTW, I am not suggesting we attempt an illegal entry (just to make that clear!).

scrubbedexpat099

Facts first.

materialcontroller

If you aren't yet certain of the specific charge, how about giving us a general idea of the type of offence involved and why you think it constitutes CIMT?

InnerFish

It will take time to get the facts, but I am 99% sure it is CIMT since it was theft related and they were over 18.

S Folinsky

Please elaborate on "previous unlawful entries."

Legal consultation might be in order. Provide what paperwork you can.

InnerFish

Has entered under the VWP when we now realise they shouldn't have. Am I correct in thinking this is unlawful?

ian-mstm

No. To be an issue, there has to be "willful misrepresentation" - meaning that he knew he wasn't eligible to use the VWP but used it anyway. If there was no willful misrepresentation, then it's likely not going to be a major issue.

Since the wording on ESTA has changed recently, he may still not need a visa. There is no mention of CIMT in the new ESTA questions.

Ian

InnerFish

Well, theft of any description is certainly a CIMT from what I have read. The new ESTA questions are confusing though. Does 'serious damage to property' include theft or burglary? His instinct would be to answer 'no' to that one but it doesn't mean he is technically eligible to enter the US. Does it!?

johnnybrown532

How would he prove he did not do "willful misrepresentation" I don't believe for a second they forget they had a record. They either didn't want to declare it or more likely didn't realise they had to but they ticked no but they knew they would have been sent back if they ticked yes so they decided to lie at the point to gain immigration advantage aka entry to the USA.

johnnybrown532

I sorry I know you won't like this but shouldn't they just continue to lie to U.S immigration given that they have been doing that for 16 years now. I don't believe they forget about a record more likely they didn't understand they may have needed a visa but didn't want to get turned back at immigration either so they decided to tick no on the green form and sign it and took the holiday once they did they had to continue doing it. Isn't it a bit late in the day to find honesty now?

InnerFish

Maybe it is too late. No, he didn't forget, but did not think it was a CIMT when answering vwp. So in that sense answered honestly. Of course we should have been more careful. Is there no point in being honest now? Should he just not travel anymore? . The only reason either of us go is because I am a USC and have family there.

ian-mstm

This is the beauty of the whole thing. He gets to make up his own mind whether or not what he did caused "serious damage to property".


And that is a perfectly valid response.


It's up to the CBP officer at the POE whether or not he's allowed to enter. However, if he believes he can honestly answer "no" to the question, then ESTA will likely be approved. If he arrives in the US with a valid ESTA, it's highly unlikely that he'll be denied entry. It could happen, of course, but it's highly unlikely.

Ian

ian-mstm

He doesn't have to prove it... because the burden of proof is on the government. They have to prove that he did commit willful misrepresentation.


No. Why? Because he hasn't been lying. You understand that, right? People lie when they know something is wrong but do it anyway. If you don't know it's wrong, how can there be a lie?


No.

Ian