HELP! Travelling on an ESTA with a criminal record
 

I have been travelling into the US over the last year or so on the WVP not realizing that I should not have been!

I have inadvertantly been travelling on the ESTA form. This was mainly due to the wording and due to my record being such a long time ago. It was 1991, I was 16 and convicted of theft and obtaining property by deception. I got the maximum sentence of 36 hours at a youth attention centre.

I realized my mistake when i applied for an ETSA form for my parents and seeing the video clip on the embassies website, have you ever been cautioned etc.

I applied for a police certifcate straight away and have a letter from the court regarding the case.

I am now going to apply for the DS-190 form and want to go to the embassy.
I have been travelling over for work and intend to at the end of August.

My concern is, will they think I have been doing this on purpose and what the outcome will be.

Extremely worried as to how this will effect my job, however as i have realized I want to go down the visa route.

Thanks in advance for your help :(

Re: HELP! Travelling on an ESTA with a criminal record
 

When you fill in the ESTA it asks about past convictions, and to complete this process you have to tick all the boxes. The only way that you could have been approved is if you lied on the application and said no. Its simply not possible to have missed the question as the system would not let you go forward.

All said and done, the only thing that may not go in your favour is the lie on the original application. However no one here can tell you if you will be approved, just simply that you may need to consult a lawyer if you get denied.

They allways say honesty is the best policy, so if you go for the interview just show them what you have and explain what happened in the past. if they deny you, you may still be eligible for a waiver and they will tell you this at the time you are denied.

edit** Actually my bad, sometimes when filling in the form and saying yes i hear it has been known to have been approved. However it sounds in this case that you did not say yes as you said that it was mainly due to wording. This means that what i said earlier still stands true, that on the application you ticked the wrong box.

Re: HELP! Travelling on an ESTA with a criminal record
 

The previous poster gave you some good advice. You might need a lawyer to help you explain away your previous difficulty when completing the ESTA.

Re. bold - Are you allowed to work while visiting on the VWP?

Re. red - I think the form you might need is DS-160: https://ceac.state.gov/genniv/

Good luck getting it all sorted :fingerscrossed:

Re: HELP! Travelling on an ESTA with a criminal record
 

Lots of assumptions here ...

The ESTA application asks a very specific question about arrests and convictions - it would be a good idea for the OP to go back and read that question very carefully before applying for a visa - it isn't at all clear to me whether a juvenile conviction for "theft and obtaining property by deception" would require a "yes" answer to that question - if it isn't clear to the OP either then they would be well advised to consult an experienced US immigration attorney before applying for a visa which may be unnecessary.

Also, don't assume that the OP lied just because they may have answered a question incorrectly.

Re: HELP! Travelling on an ESTA with a criminal record
 

Fair point and i apologise

However the wording on the esta application does clearly state

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

The very first part of this question should have struck accord, and even if not aware as to the meaning of moral turpitude, then Google or Yahoo or the police could have clarified the term. Just clicking no because the wording is not clear does still constitute that the answer is a lie, even if it is through ignorance. Im not saying he is a bad person and dishonest, but regardless of how it happens a lie is still a lie.

It then goes on to say at the very end, which you also have to tick

* Certification: I, the applicant, hereby certify that I have read, or have had read to me, all the questions and statements on this application and understand all the questions and statements on this application. The answers and information furnished in this application are true and correct to the best of my knowledge and belief.

Taking this into account you can not use the excuse that the wording was misleading or you did not understand the question at hand. If it was not clear to you, seek clarification before continuing on and signing an official declaration.

Also there is no part in this statement that says since over the age of 18, it just asks if you have ever been. It is a strictly yes or no answer, and in this case the answer is clearly yes as he was arrested and received the maximum sentence for said offense.



But you are right maybe i should choose words more carefully.

Re: HELP! Travelling on an ESTA with a criminal record
 

Well you seem to have chosen your words with a great deal of care in that answer. I just wanted to say that I reckon it's a first class explanation which goes a long way towards clarifying and demystifying the ESTA question. :thumbup:

Re: HELP! Travelling on an ESTA with a criminal record
 

Is it?

Re: HELP! Travelling on an ESTA with a criminal record
 

The OP himself mentions that he was "convicted of theft and obtaining property by deception. I got the maximum sentence of 36 hours at a youth attention centre."

Re: HELP! Travelling on an ESTA with a criminal record
 

Yes, but is it a "crime involving moral turpitude"?

I am not a lawyer and I do not have a definite answer to that question.

Re: HELP! Travelling on an ESTA with a criminal record
 

There doesn't seem to be a definitive answer to what constitutes moral turpitude anywhere that I've seen. But doesn't the ESTA guidance steer people towards answering "yes" if they are unsure - presumably so that the issues can be determined by consular official at a visa interview?

Re: HELP! Travelling on an ESTA with a criminal record
 

I'd say it's firmly within the category of CIMT.

I just shake my head when people rationalize how they can ignore their past and answer these questions incorrectly because of how much time has passed.

If he went on vacation to Florida at 14 years old, and then were asked at the age of 65 if he had ever vacationed in Florida before, he would readily answer that he had indeed been to Florida. Of course if you ask the same person for some potentially derogatory bit of information such as ever being arrested he would mull it over and say no because it was soooooo long ago.

People do the same thing with visa denials etc when they switch from some other nationality to being British. Have you ever been denied a visa? Hmmmmm..... not since I became British two weeks ago I haven't..... that must be what they mean....... I'll just insert extra words into the question using my imagination so I can say NO to that one..... yeh..... that's the ticket......

What a bunch of rubbish.

Re: HELP! Travelling on an ESTA with a criminal record
 

In fairness to the OP - they were not attempting to "rationalize" anything and I was merely suggesting that the OP should consider consulting an attorney to make sure whether they really did need to apply for a visa or not. because it seemed to me that they were getting a lot of very absolute advice based only on the limited facts provided in their post.

Re: HELP! Travelling on an ESTA with a criminal record
 

I didn't think he was rationalizing now, but his post of "This was mainly due to the wording and due to my record being such a long time ago." brought out my rant about rationalization in general. He admittedly rationalized in the past.

I essentially put my $.02 in on the CIMT issue and then howled at the moon per se about how people rationalize that the words "ever been" mean something completely different to them in their head.

Aside from weighing in with an opinion as to if it was a CIMT or not, my comments weren't meant to be a rebuttal of anything you posted. I absolutely agree with what you said about how an incorrect response does not automatically mean that the person lied.

If I were to bet on the outcome, I'd wager that the offense was a CIMT. A YES response on the ESTA is required. The juvenile conviction would not be considered a conviction for immigration purposes, make the person inadmissible or need a waiver to overcome. Any prior misrepresentation made would not matter because it is not material as the person would not be admissible on the true facts of the case. They could be granted a visa without the matter being held against them.

Re: HELP! Travelling on an ESTA with a criminal record
 

I did think your response was harsh, however justified. I realize my mistake hence the reason why I am trying to put right. Just worried about the consequences of doing so as a ban etc could mean i lose my job.

I will be speaking to a a US immirgation lawyer tomorrow hopefully as i want to complete the form and go to the embassy asap.

I am worried about the DS form as it asks if i ever have been denied, i havent but did not complete the form correctly.

I hope they do not deny me and I have to apply for a visa as I will need to return before the 90 day process.

Thanks again for your advice and please send more if you think it will help.

Re: HELP! Travelling on an ESTA with a criminal record
 

I'd bet money your police problem will not require a waiver. Hopefully you can get a visa and put this worrying behind you. Please be aware that my rationalization rant wasn't directed to you in particular, but was a culmination of other threads and posters.

Good luck.

Re: HELP! Travelling on an ESTA with a criminal record
 

Hi there:

I used to practice immigration law. I am often amused that the answers given with great certainty by intelligent but ultimately lay persons on this forum when I believe that an experienced attorney will be going "interesting question worthy of review."

I think OP is correct in his wish to get things straight. He may have FU'd in the past, but does not appear beyond redemption. A paid legal review is in order -- and the answer may not be all that definitive.

Re: HELP! Travelling on an ESTA with a criminal record
 

Well attended the interview. The Embassy seemed ok with my previous use of the ESTA form, explained that I didnt realize and apologized. However, regardless of how long ago or minor the offences as there is more than 1 I am permantly inadmissable! They have recommended and applied for an ineligibility waiver.

Fingers crossed I get it soon as they say it will be around 2 months to get the email telling me to send my passport off. Not sure how long it will take after I send the passport off? I was supposed to be going in a months time, work gave me a company letter (applying for a business B2 visa) so fingers crossed I get it quickly by not holding my breath.

Not good but by the sounds of things it will be a waiting game to get the email to say I'm ok :frown:

Re: HELP! Travelling on an ESTA with a criminal record
 

Once you get the visa, please report back as to what annotations, if any, are located on the visa. It will be interesting to see if they actually have to issue a waiver and under what grounds.

Re: HELP! Travelling on an ESTA with a criminal record
 

Certainly will do, they gave me a sheet with list of 212's and marked moral turpitudes so I'll see what they come back with. Looking into it further it seems you are only except if you only have 1 conviction under 18. If there are multiple a waiver is needed so fingers crossed

just hop work dont ask me to go there for the next 3 months as i think it will take that long!

Do you know how long it takes once I have the waiver to apply for another 1, i.e. if they issue a year do i have to apply 3 months before the visa expires, a very long and arduous process

Re: HELP! Travelling on an ESTA with a criminal record
 

Were you convictions in an adult court? CIMTs handled in juvenile court should be a free pass regardless of how many there were, at least under the criminal grounds.

http://www.state.gov/documents/organization/86942.pdf

"9 FAM 40.21(a) N9.4-2 Between Ages 15 and 18
(CT:VISA-1318; 09-24-2009)
Juveniles between the ages of 15 and 18 at the time of commission of an offense will not be considered to have committed a crime, and thus be inadmissible under INA 212(a)(2)(A)(i)(I), unless tried and convicted as an adult for a felony involving violence. A felony is defined in 18 U.S.C 1(1) as an offense punishable by death or imprisonment for a term exceeding one year. A crime of violence is defined in 18 U.S.C 16 as:
(1) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or
(2) Any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

It's not uncommon for the second waiver to take longer than the first so apply a few months before the last one expires.

Re: HELP! Travelling on an ESTA with a criminal record
 

It was in Crown court unfortunately.

16 when the offence took place (Feb 1991) convicted in Crown Court May 1992, I was then 18. i got the Maximum sentence of 36 hours at an attention centre (juvenile sentence) which is know part of the youth rehabilition order.

No violence, it was theft and obtaining property by deception. Thats whats on the court records, worried now they wont issue me a waiver

Re: HELP! Travelling on an ESTA with a criminal record
 

Your police problem was a long time ago, you haven't been in any trouble since, and you said the consular officer is recommending the waiver. That's a good sign that you will be successful.

Re: HELP! Travelling on an ESTA with a criminal record
 

I hope so!

Work my also be looking into transferring me over next year at somepoint (internal transfer visa) do you think this maybe a problem again? Speaking to an immigration lawyer before I went to the embassy she said that they would not do these kind of checks which i thought was strange?

Re: HELP! Travelling on an ESTA with a criminal record
 

If you need a waiver for a visitor visa, you would also need a waiver annotation on any other nonimmigrant work visa as well. If they grant a waiver for a B, they should also grant a waiver for the L.

Re: HELP! Travelling on an ESTA with a criminal record
 

Regarding timeframes for waiver issuance, I was in a similar situation to Jonsie25 last year. I was also recommended for a waiver of ineligibility at my interview. It then took 9 weeks before I received the email asking me to contact DX Secure and forward my passport to the embassy. It took a further 2 weeks for the passport to be processed and returned to me with the waiver inside.

Re: HELP! Travelling on an ESTA with a criminal record
 

Thanks for the info and will keep you all informed.

Does anyone know how long the waiver would take if i was given a L visa (Internal transfer) is it the sametime as a normal one? Could affect the possibility of the company transfering me :(

Re: HELP! Travelling on an ESTA with a criminal record
 

Would have been a lot easier if you'd found your way to ticking "no" again lol

Re: HELP! Travelling on an ESTA with a criminal record
 

It is a pain however pleased I'm going through the correct process. Work are talking about potentially internally transferring me at somepoint towards the end of the year so it would have been even more messy then!

Knowing my luck i would have been pulled entering the US and been banned so definitely the right way to do it.

Just have my fingers crossed that they give me the waiver it comes quickly due to work, they give me a multiple entry so i dont have to do this for a while and..... it doesnt take this long if the company does internally transfer me as this will cause problems as they will want me over there pretty quickly :(

Re: HELP! Travelling on an ESTA with a criminal record
 

First time I had one they gave me 6 months and 1 entry lol.

They have "recommended" 12 months and multiple entires this time. Now all they gotta do is open my file and tick "yes" Which apparantly takes 16 weekd "or more"

Jokers

Re: HELP! Travelling on an ESTA with a criminal record
 

Did you apply for tourist or business? I apllied foe business, not sure if its any quicker?

Re: HELP! Travelling on an ESTA with a criminal record
 

Tourist.

i think the applications for waivers go through the same process though dont quote me on that.

From what I can work out the process is:-

• Interview
  
• Recommendation
  
• Ignore all chaser emails or respond with standard crap and dont answer any of your questions
  
• Sit on it for 12 weeks
  
• Open file, click yes
  
• Send email requesting passport
  
• Sit on passport for 2 weeks
  
• Send it out.

And they wonder why their economy is in collapse :) lol

Re: HELP! Travelling on an ESTA with a criminal record
 

Well I really hope it doesnt take 16 weeksm fingers crossed and keep each other informed!

Re: HELP! Travelling on an ESTA with a criminal record
 

If it was 8 weeks you have 2 weeks left so let me know

Re: HELP! Travelling on an ESTA with a criminal record
 

Guys, just relax and accept your fate. There is nothing you can do to speed up this process. Nothing at all. And if you'd read my earlier posts in this and other threads, you'd see that my own timeline last year was about 9 weeks between interview and email plus a further 2 weeks for the courier to handle my passport. Just throwing that in as a guide.

Re: HELP! Travelling on an ESTA with a criminal record
 

Well thats 1 day before my travel date, so to be fair ive realistically got like 3 more days to the "the email"

Im peeing in the wind and im getting wet!

Re: HELP! Travelling on an ESTA with a criminal record
 

Yeh... Why the heck should they bother with your questions? Your questions are distractions. You paid for a visa and waiver application, not for endless handholding, a shiatzu massage, or to rush through your late application ahead of everyone else's.

How many applications do you think they could have been approving when they were instead busy looking at your numerous emails? How many more could they have been approving if they actually looked into an issue they already told you could take 16 weeks to resolve?

Bad planning on your part does not constitute an emergency on their part. They owe you nothing.

I bet the owner of the shop you stole from would be grinning from ear to ear if he knew how you're still paying for it. I suspect you didn't get caught the first or only time. Call it Karma.

Re: HELP! Travelling on an ESTA with a criminal record
 

+1 :thumbsup:

Re: HELP! Travelling on an ESTA with a criminal record
 

I think resonate believes that their application is the only one in the system:rofl:

Feel bad for them losing so much money (if it happens that is) but to blame everyone else for their mistakes is a p*ss take.

Re: HELP! Travelling on an ESTA with a criminal record
 

Not sure what keeping convicted criminals out of a country has to do with the global issue of over leveraging... last time I checked continental Europe was having an issue or 2 as well....

Re: HELP! Travelling on an ESTA with a criminal record
 

I can't comment on the timing but from my recollection of the process if it had been required I assume it would have been seen by my employer / the lawyer my employer hired. So you may want to factor that in to your decision about moving forward with any transfer, no point in going for it it if it leads to you losing your job :-(

Slightly off topic and this may be more finance specific but we would carry out a background check on new hires in the UK, and I also specifically ask at interview if they are able to travel to the US for meetings as thats a requirements of most of the roles, although given your example I could still have people who believe they are because they have mis understood the form...