Hi, I'm new here, found this site by frantically googling everything I could about the VWP!

I have booked a holiday in Florida for June, however I have now found out that I may be ineligible for the VWP, but I'm not sure so could use some guidance!

I am 21 now, however when I was just 15, my and a friend got given a police caution for shoplifting (It was a stupid stupid prank and I regret it so much). At the time I was told it would only be on my record for 5 years, however the law changed and it's on there permanently.

I wanted to apply for the VWP but it says you are inadmissable if you have commited a crime/been arrested etc.

I read the Immigration and Nationality Act (and also the sticky about moral turpitude on here) and from what I understand I might be able to get the VWP as I was under the age of 18 and it is over 5 years since I had committed the crime?

On the VWP application form it says stuff about moral turpitude and I got really confused. Does theft as a 15 year old over 5 years ago mean I don't have to get a visa and can get a VWP, or does what I've read mean I can't get the VWP but would be eligible for a visa?? If I was to apply for a visa it's not guaranteed that I would get it before I am supposed to go on holiday.

Any help would be greatly appreciated, thanks! (Sorry it's so long!)

I wouldn't worry about it. Moral turpitude to my understanding involves drugs, prostitution and fraud and of course any links to terrorism. Many people with a minor record visit the US on a vwp especially if it is some time ago and you were a child at the time.

Thanks for the reply. I think theft is considered moral turpitude, from what I read, it's just whether I am an exception to it as I was a minor or not! I've heard from a few people that I would be ok for the VWP, but others have said not to risk it, it's just knowing what to do!

Hi,

Shoplifting, (petty theft) is a CIMT. If you have been arrested for a CIMT, regardless of age, then you must answer Yes to that question on the ESTA.

The age at the time is considered when the determination is made whether or not the person requires a waiver of inadmissibility. If the ESTA system refers you to the consulate for a visa application, then your age becomes a factor. That's when they consider the exceptions.

You are unlikely to ultimately need a waiver notation on the visa, but that's not what the question is asking. Whether or not the record of arrest is still available doesn't matter either.

Good luck.

Moral turpitude is not a black and white subject and leaves a lot of get outs for the government.
CIMT is an act that is not acceptable to fellow man or morally acceptable, however The OP does not mention arrest, just caution, true you may still have been arrested, but only cautioned afterwards.

During my process and discussions with an Immigration lawyer, I was accused of hitting another boy at aged 13 and convicted at 14, nothing major in the way of sentence, boys will be boys at that age and do fight, but the US government dont see it that way. My question to my attorney was, should I be concerned, he said possibly not as the sentence occured under the age of 15 and may be deemed delinquency which is not a CIMT, however every case is different and what happens for me, may not happen for others.

As I understand the ruling of being under 18 and 5 years after the fact relates to applying for the visa and only then will they consider the application. I may have a different understanding and sure I will be corrected if wrong.
The OP has just over 4 months to act on the info and see if it will affect the VWP elligibility, they could spend the extra bit of cash for a one off consult with a U.S attorney based here in the UK to ask the relevant questions to their case?

Thanks for replying both.

crg, I am a bit confused as to what you are saying, sorry! I don't really understand all these legal terms and stuff.

If I answer yes to the question on ESTA I will automatically be rejected and have to apply to a visa? On the FAQ's on the ESTA website under that questions section it says refer to the Immigration and Nationality Act which is where it says about the exception cause to being arrested/caution (exception if you are a minor etc), but I still don't understant whether that's for the VWP or a Visa.

What is a waiver of inadmissibility/waiver notation? Are you saying I definitely have to apply for a visa, not VWP? Thanks for your help though!

Wolfy, I am not sure if it counts as an arrest or not, I think it would be an arrest with a caution though. Because I was 15 at the time, I don't think it counts as juvenile deliquency. How do I get in contact with an attorney? Will it cost a lot? Would the US embassy be able to tell me whether I am eligible for the VWP? Thanks for your help

You are wrong in assuming that if you answer yes to the question on esta about being arrested that you will automatically be denied an esta number and unable to use the vwp.
Your best bet is to apply for esta online. Answer the questions truthfully and see what happens.
Come back with the result and we can then help you further if you get denied an esta number.

Oh thankyou I didn't realise, I will get on and apply for it now.

I clicked yes to the criminal offense and it wanted me to read the online help section. It says:

Crimes involving moral turpitude - Such offenses generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offense, that may affect whether an offense will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act.

So it says theft might not be considered moral turpitude depending on my age right? It says for further info, refer to the Immigration and Nationality Act, which says...:

INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY



Sec. 212. [8 U.S.C. 1182]


(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:

(2) Criminal and related grounds.-


(A) Conviction of certain crimes.-


(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-


(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or


(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.


(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-



(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

...

So the bolded applies to me I think? Arghh so much stress and confusion!

A waiver is issued to allow someone to travel when they are inadmissible under one or more of the section 212 grounds of inadmissibility. Someone can be be denied in ESTA, yet still not need a waiver of inadmissibility. ESTA seems to be so they can allow squeeky clean people with no problems to travel without a visa, while filtering out people with potential problems and having a consular officer review the situation prior to travel.

Don't confuse ESTA eligibility with admissibility. People can be admissible, but still ineligible to get an approved ESTA or use the VWP.

For example, if a 14 yr old gets arrested with drugs (I know you didn't have drugs) they must answer YES to the ESTA question because they were arrested for marijuana possession. They will likely be sent to the consulate for a visa application to make a determination how the arrest impacts their admissibility. If the kid had a joint and it was handled in juvenile court, that kid would most likely not be indmissible as juvenile delinquency does not count as a conviction for immigration purposes. If a visa was approved, it would not need a waiver notation on it.

If the same 14 yr old were to have been convicted of a controlled substance trafficking offense in an adult court, the kid would be inadmissible. In order to travel, he would need a visa with a waiver and waiver notation on the visa.

The question asks if you have ever been arrested for a CIMT. You need to decide if there was an arrest. If the answer to that is yes, then you need to decide if the arrest was for a CIMT. Shoplifting is almost 100% a CIMT.

The exceptions for single petty offenses, age, political offenses etc are not material to the ESTA question so don't consider them when deciding how to answer.

Someone had a link to some videos put out by the consulate dealing with this issue. Perhaps we can find a link.

So what you are saying is not to do the VWP and just apply for a visa?

Sorry I've got the wrong end of the stick, it's hard to get my head around all these terms and stuff.

I still don't understand why it says on the ESTA website that age can be a factor in deciding if it's a CIMT or not, because surely that means that my crime wasn't moral turpitude if I was 15?

Also, it would be great if someone knew the link to the video you are talking about!

I may have found the videos on visaplace.com?

I looked on the website and found this:

Crimes of moral turpitude cover a large spectrum of offences from common assault to drug offences. However there are certain important exemptions found under INA 212(a)(2)(A)(ii):

1. The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.

Is this not saying that my crime is not moral turpitude? On ESTA it says have you been arrested of a crime involving moral turpitude, but the above seems to say I haven't?

I know said don't get confused with ESTA eligibility and admissability, but if I get approved by ESTA wont that make me admissable?

Well did you apply for ESTA as advised and what was the result?

You would do well to brush up on your understanding of CIMTs.

Ian

The exceptions don't change a CIMT to a non-CIMT. The exceptions just allow certain people who did a CIMT to still be admissible without a waiver.

An approved ESTA doesn't mean someone is admissible or not. It's supposed to keep people who are clearly inadmissible or potentially inadmissible from arriving in the US without having their situation evaluated by a consular officer. The decision as to visa eligibility is made at the consulate. The decision on admissibility is made at the border.

There are two different issues.

Was there a CIMT arrest or conviction?

To answer that, you need to know:
Arrest or Conviction: YES or NO

If the answer is YES you then determine if the offense was a CIMT or not a CIMT.

CIMT: YES or NO

If it's a CIMT, and there was an arrest or conviction then the answer on the ESTA is Yes. That's all the question asks about CIMT on the ESTA.

If you are denied by the ESTA system then you have to complete a visa application. The consular officer determines several things.

Was the offense a CIMT: YES or NO

Was the person convicted (under the US immigration laws) of the offense: YES or NO

*Note: Juvenile offenses handled in juvenile courts are usually not considered convictions but juvenile delinquency.

If Conviction = NO, did they admit to the essential elements of the crime (there are specific criteria for the admission to count): YES or NO

If CIMT= YES and either Convicted or Admitted = YES then they check for the following exceptions:

1) Does it fit the age exceptions?

2) Was it solely a political offense?

3) Does it qualify for the single petty offense exception?

4) Was the person pardoned by a US president or governor?

If the person was convicted/admitted to a CIMT and it doesn't fit one of the exceptions then they are inadmissible any visa they get needs to have a waiver notation. The waiver allows an inadmissible person to seek entry anyway without it being held against them. It's waived.

If the offense isn't a CIMT, or they qualify for an exception then a visa could be issued without a waiver notation.

I'm not telling you how to answer, but just keep in mind that the age and single petty offense exceptions are not material to that question. You are most likely admissible and wouldn't need a waiver but still must decide if you have been arrested for a CIMT and answer accordingly.