Grant W

Hello

I am sure these questions have been asked on here many many times, but please bear with me, as having searched the forums and several other websites I'm unable to pin down exactly if/if not I a)need a visa in the first place and b)have a hope in hell of getting one anyway.

First my situation. I am 44 years of age. I work as a games designer and have done so for the past 15 years. In 1995 I was arrested and released with a caution for shoplifting (goods approx value £35). It was the first time I had been involved with the police and to this day remains my only involvement with them.

I now work for an American company, and they would like me to visit the US every so often for business meetings etc,. I am about to apply for a B1 Business visa to attend such meetings (My employer knows my visa issues so no flights have been booked.)

I have my ACRO report and all the necessary documentation to apply at the embassy. However, is it even worth me going as there are two confounding factors;

a) In 2003 I travelled to the Yukon in Canada, during which time we crossed the border into the US via the top of the world highway. At the border I was given the form to fill in by the tour guide on the bus. Reading through it, I ticked no to the arrest question - wrongly now I know - and proceeded.

b) I have recently read that any conviction of moral turpitude bars you from entry, pure and simple. If so, is there any point in me spending the money and going in the first place.

The reason I'm unsure is this whole "petty exception" clause. For starters, is the exception based on the term of jail time under US or UK law (shoplifting/theft carries a 7 year maximum sentence in the UK)? Also my conviction is 16 years old now so spent under UK law - but does the time since it's occurrence have any bearing.

Does/Has anyone with an old conviction been granted a visa or do you always get denied and then have to apply for the Waiver of Ineligibility? I'm under no time pressure here, I'd just like to inform my employers of the time scale involved or the futility of me applying at all.

Many thanks in advance for any help/advice.

S Folinsky

You may want to consult with a lawyer knowledgeable in immigration law and familiar with UK criminal procedure.

I don't know the answer to your question, but by way of analogy, I am aware of how California "wobblers" are handled. An interesting question.

ian-mstm

Theft is a CIMT, and accepting a caution - while not considered a conviction for US immigration purposes - is an admission of guilt.


So, it's been over 15 years... that's in your favour.


Ouch! Wilfull misrepresentation to gain an immigration benefit is a huge no-no!


You won't be spending any money "going in the first place" until such time as you apply for and receive a visa.


Being spent under UK law is meaningless with respect to US immigration. If you apply for the visa, you must disclose the arrest. Respectfully, if you do not apply for the visa, your chances decrease significantly!

Ian

andy1

Convictions are NEVER spent..they stay on your record for life in the UK.

Grant W

Thank you for the advice.

Ian - Would you suggest I proceed with the online application and then go for the interview? I guess I have nothing further to lose than approx £100 and a ban from entering the US. With regard to wilful misrepresentation I accept that is another thing against me. My only defense is to say in all honesty that I ticked no because I thought that was indeed the case, I was not arrested for a crime of moral turpitude. Before people jump at me, I wish to state that I know such an answer is wrong now - hence the reason I didn't tick no again.

Andy1 - My mistake. It's amazing the number of times I tell someone my story and they reply "16 years ago, no worries that doesn't count". I used to say the same until I started researching on the internet. Perhaps "step down" is what I should have said for I believe that such a thing happens after a certain amount of time. Again, I'm no law officer so that's just me guessing.

materialcontroller

Hi Grant W. Welcome to BritishExpats.

You already seem to have a good grasp of the situation, and it's also a massive plus that your employer is aware of your difficult past and appears to be understanding.

I don't believe that you wilfully misrepresented yourself on the previous visit to the USA. Being wilful implies a measure of deliberately planned deceit. You, on the other hand, honestly believed you were doing the right thing at the time. Yes the declaration on the I-94W (or ESTA) requires you to have fully understood the implications of what you were signing. But acting in ignorance as you did is a world away from deliberately hiding something or telling lies in order to derive an immigration benefit. That is wilful misrepresentation. Other people have written here before that they made similar errors to you (mainly due to "moral turpitude" being so poorly defined). The US authorities might see it differently and treat it as a red flag, but it is quite common and people do overcome it.

You just need to bite the bullet and go for it. Prepare yourself as well as you can and apply for the visa. If your workplace has an immigration lawyer or are prepared to engage one for you, take advantage of their expertise. Or hire your own lawyer if you feel it would give you peace of mind and added security.

Even if you aren't granted a "regular" B visa, you may be recommended for a waiver of ineligibility. This is a process I know very well, having received two waivers in the last two years. You can search my old posts for more info, or ask as many questions as you like and I will try to help you. There is also a guy on here called Jonsie25 who has been through the exact same process recently and you may find his posts useful too.

Good luck to you.

crg

A caution is not a conviction. Although it is an admission, the admission may not be sufficient to constitute the admission required to make someone inadmissible under US immigration laws.

It would like be a single petty offense anyway.

Even if the form was filled out incorrectly, it may not equate to willingly and knowingly misrepresenting a material fact to gain an immigration benefit.

If it's not a conviction or admission of guilt or qualifies for the single petty offense exception then it's not a material fact and therefore lying about it would not make someone inadmissible for fraud/misrepresentation.

I'd say a consultation with an attorney is in order because you have more riding on the outcome than a trip to see Mickey Mouse, but I'd suspect that the consular officer would hear caution... shoplifing.... prior VWP entry and say "Meh, here's your visa". It is unlikely that a waiver would be necessary. Of course, this is just based on the limited information that has been provided.

Grant W

materialcontroller - Hello and thank you. Your post has made me feel a little less pessimistic.

My company have offered me the services of their lawyer. However, they have told me to go ahead and see what the embassy says first. I would imagine that is what a lawyer would tell me too.

materialcontroller

As crg has noted above, I would speak to the lawyer first. And make sure it's an attorney who is very experienced in US immigration cases. If not, find one of your own and spend a bit of money getting a decent consultation. You can find a good lawyer here: http://www.ailalawyer.com/

Grant W

crg - Thanks for that also. Posted before reading your reply.

What I have stated is all the facts that I can think of as being relevant,. ie I know I have no other convictions etc, and I know I have never been to the US again. I did go as a teenager *before* my caution but I don't see that as having any bearing.

With regard to the entry via the Yukon. I was sitting in a van with 15 other backpackers. The border crossing on the northern highway is a shack in the middle of nowhere, nothing more. I filled in the form and handed it to the tour guide who then disappeared in the shack with our passports. An officer came out sometime later, looked in the van, said hello then waved us through. Up until that point I had never heard of the VWP or knew anything of the form, or the fact that my previous arrest was one of MT. I stress that this is not an excuse on my part - it is just the matter of fact detail of the situation.

How would you explain this though? I'm wary of being too explanatory as it may sound as if I'm trying to exonerate my actions and wriggle out of the consequences. I very much doubt I would get much mileage out of saying to the visa people what I have said above. Would it be wise to admit my guilt, state that I was unaware that I was lying - something I now know to be wrong - and leave it at that?

materialcontroller - just saw your new post. Thanks again. I'll make a point of doing that.

materialcontroller

You should explain your previous US visit to the embassy exactly the same way as you've just explained it to us.

S Folinsky

Not. Really

terminalvelociraptor

Also, if the Consular officer refuses your application, but does not mention the possibility of a waiver, officially you are able to request a waiver anyway, and it is then in the lap of the Gods, a.k.a. the Admissibility Review Office, as to whether to grant a waiver (though i have yet to hear from anyone who has actually had to go this route.)

Grant W

Just an update here. My ACRO report states "No Trace". I would imagine this is because my offense is so old (17 years). Checking the US website, it says that an arrest which did not go to court - mine did not - requires all records relating to the arrest to be provided instead.

I have since contacted the police station where I was detained asking for my arrest record, giving the reason why I need it. I have just received their reply which states, quote;

"Good afternoon, You will not need to attend a Police Station. The ACRO report you have requested should list all details of any arrest record. Kind regards"

So what now? Do I just attend the interview and give a written testimony of my arrest. I'm tempted to visit the station anyway because if their is no record of my arrest, then I wonder how such information could be retrieved & provided.

Any advice is greatly appreciated.

materialcontroller

I suggest that you go to the police station and ask them to put something in writing for you. Even if it's just a short note (on official headed paper) saying that they no longer hold records. Or you could try a subject access request.

The fact that your ACRO returned "No trace" means, in effect, that you don't have a criminal record of any kind.