movida

I have posted previously as I have a CIMT and consequently require a tourist visa to visit the US. I am now well into the process but feel my case is quite unusual and I couldn't find a precedent on this forum having searched.

I visited the Belfast consulate a few weeks ago, hoping at the very least to be considered for a waiver of inadmissibility. I had sought guidance from a US attorney and UK lawyer beforehand, and had some documentation which could help me should it have been accepted. The background is that c. 12 years ago recently after the conviction (which only resulted in community service) I applied for a visa and was denied. I just left it since then so that enough time had passed. The guidance I had received prior to booking the recent interview suggested it really should fall under the petty offense exception (i.e. 1 single CIMT offence, to have a maximum possible sentence of 12 months imprisonment). The way I was sentenced even if they imposed the maximum, in a magistrates court, I could only have been imposed 6 months imprisonment of which I of course had to serve nothing.

I was encouraged that during the interview the consular officer was very matter of fact, backed up the fact that due to my sentence and UK legislation it seemed a 'clear cut case' that I did indeed fall under the petty offense clause. They explained the reason I was denied a visa all those years ago was because an embassy officer made an administrative error and the system said I had 2 offences, not the 1 I actually have (and that my police certificate proved). So in fact in theory I could have potentially travelled using this exception, however with a visa denial to my name I need to apply for a visa for life now.

The result was that they actually kept hold of my passport so that 'my record could be cleaned up' to then process my visa application, so I came back to London and have been waiting since. They told me to email a week later in case I didn't hear anything. I have done so and they have been quick to respond and polite. The latest is they are asking the DHS to accept that I meet this exception (the initial response was that I didn't), and hence they are asking for this to be overturned. Interestingly the DHS came back to ask them the value involved in my case (it was a single count of theft), which I thought was unusual as this suggested it impacted their decision whilst the exception clause is black and white, not discretionary. That concerned me slightly as it seemed the rules of this exception weren't being followed by the DHS potentially.

Just over 2 weeks on, they've said they'll be in touch when they hear back and to wait. They still have my passport of course, they're happy to send it back but in the hope it's sorted soon I'd rather they keep it to process the visa if accepted.

As I say, I think this is a bit different as at this point I may not expect to wait the circa 4-5 months for a waiver of inadmissibility as this isn't what they are seeking. Yet the usual processing time for a visa (as they kept my passport) has passed. How long would I be expected to wait for this decision from the DHS? Should I continue to leave my passport with them? They are already in touch rather than being in a queue seemingly, as they passed on that question from the DHS about the amount involved (and that was a week ago, I responded the same day).

movida

I also don't know how to find my case in the 'administrative processing' list for Belfast at https://uk.usembassy.gov/wp-content/..._24may2018.pdf

This 'case number' which should have been given to me at interview definitely wasn't, the only thing I was given was a generic print out about passport return times with the consular email address handwritten on to contact after a week if I heard nothing.

scrubbedexpat099

A Visitor Visa issuance is discretionary, the default is no.

If you needed a waiver I think last time I saw one was about 5 months, the issue here seems to be whether you need a waiver or not and guidance is being sought, there is no timeline for this, all you can do is prod to see what happens.

S Folinsky

I see mention of waiting on DHS. This is a puzzlement. Involvement of DHS contradicts most of the post.

movida

S Folinsky

Your long post is internally inconsistent, that's all. You describe the status of the case as a continuing determination of whether or not the petty offense exception applies and then suggest that a determination has been made and a waiver of inadmissibility is in the works.

​​​​​​I find that confusing. As my signature block says, imI not going to give advice in this forum, but I might suggest that the description of the situation is an obstacle to coherent or correct advice or discussion.

crg

According to open sources, there is now a process that DOS can use to get DHS's 2 cents about an applicant during the DOS review process. It sounds similar to the advisory opinion process DOS has used internally. Perhaps that's what's happening.

movida

OK. I made it clear that they are not currently seeking a waiver of inadmissibility. If they were, I'd be slightly more comfortable in the sense I am familiar with the timeline for that from what I have read.

In my case, I have been told in the interview, and follow up emails, that I do qualify for the petty offence exception. However, they are overturning the decision that I am not, by pursuing it with DHS. I presume this is because it is a 'default' no, as I don't see why DHS would have instantly said no when other parties involved describe it as a clear cut case.

So, I feel like I am waiting but have absolutely no idea how long for. According to the Belfast embassy published updates, a waiver of inadmissibility could be sought within a couple of months. I have waited for almost 4 weeks in a slightly confused state as to what queue I am in and when I will hear if I 'officially' am granted this exception. If it's a yes, then I'd be granted a visa. If a no, presumably I'd be put forward for a waiver of inadmissibility and then another timeline begins.

I can chase again but they politely tell me that when they hear something, they'll be in touch. Not that it means much but I didn't receive a case number so my case doesn't seem to appear on their published reports either.

Any suggestions what to do? It feels like I should ask for my passport back but again if I know a decision is days/1 week/2 weeks away I shouldn't bother.

S Folinsky

<sigh>

Actually, you are not really being clear at all. It may very well be that this is the result of not understanding how the system works, its terminology and also that we do not have the advantage of the paperwork.

There is a legal determination at the root of your inquiry. Not only can your own attorney advise you, this is the type of question where an an attorney might be able to directly interface with the consulate .

Good luck.

movida

movida

I’ve chased again to be told by the Belfast consulate, as the DHS is an entirely seperate entity they cannot advise when they’ll hear back.

What frustrates me is this whole issue exists as the London embassy made a mistake years ago and this admin is needed to correct if. The DHS were clearly looking at it as they responded to the Belfast consulate with some questions about 3 weeks ago. So it didn’t seem like it was at the back of a queue/bottom of pile.

Any suggestions what to do besides wait weeks/months for an update? I’m eligible for the petty offense exception and the consulate confirmed themselves. It just feels like I’m in a black hole now waiting.

materialcontroller

You sit and wait, just like any other visa applicant in AP. In the meantime, if you need to travel, you could ask them to return your passport to you.

lansbury

I wonder if this is part of the delay. The maximum for theft is 7 years. Sure a magistrate can only sentence for 6 months but if they think that is insufficient they pass the case to the Crown Court for a judge to pass a harsher sentence. Now the whole matter is being reviewed is someone delving deeper than the previous error, causing the delay.

movida

Thanks for all the advice. I received an update from the Belfast Consulate, the DHS have said they cannot grant me the exception because (as above) technically the maximum for theft is 7 years. Regardless of the fact I served no custodial sentence and the court I was charged in. It's a shame as the consular office was convinced it would be fine (to my surprise), however I'm pleased at least that the black hole of administrative processing only took 4 weeks in my case and and that a waiver application at least has a more determined timeline.

The DHS recommended the consulate put me forward for a waiver, current processing from Belfast is c. 3 months so I guess I'll just have to wait and see. I presume that due to it being 12 years ago, single offence, 80 hours community service, faultless record since that chances should be fairly good?

materialcontroller

Yes, your chances are good for being granted the waiver. It will just take a little time.