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Travel to USA on Visa Waiver from Australia Criminal Record

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1. Posted by tim.jones (Budding Member 4 posts) 8y

Hi I had shop lifting charge "theft" with no conviction recorded. The record was dismissed. I got 6 month good behavior bond. This happened more than 8 years back in australia.

Now i was to travel to usa for short period and then hoping to work there in a company on E3 visa (usa work visa for australian citizen).

My worry is

Can i travel on visa waiver to usa? or do i need to apply for visa to travel to usa as Australian citizen?

Will i be eligible for E3 visa?

Please help me with these two questions....

2. Posted by Answer man (First Time Poster 1 posts) 8y

Greetings...I work as a legal case stragetist with 2 law firms...I'm not a lawyer, but I help lawyers develop an effective stragety to win cases...In terms of U.S. immigration law....Under the Immigration Nationality Act (INA), any alien who has either:

- Been convicted of

or

- or who admits having committed

or

- or who admits committing acts

which constitute the essential elements of a "Crime Involving Moral Turpitude (C.I.M.T)," is technically inadmisible to the United States.

Your shoplifting offence may or may not be a C.I.M.T....It will depend on the specifcs of your case;since it will have to be compared to the comparable specific U.S. statute.

Now they may or may not necesarily be able to see the conviction...but if you admit to it...then they will have it on record for sure...Plus, it stays in the Customs & Border Database forever...If it is a C.I.M.T and they discover it...They could deny your entry and send you home...If you get caught lying to them about it...and they discover it...Then they could get you for a 6c misrepresentation and send you home...this is a very bad category to be placed in...Plus, there is always the immigration detention facility...and believe me...it stays full....There are ways to win your case though...

Recently, they are consodilating numerous databases...so they are catching a lot of people...My work is mostly helping canadians who have records and are denied entry. There are numerous techniques to overcome their inadmissibilty...It is all just case specific...

Plus, ir order to qualify for any visa or visa waiver...You have to be admissible in all categories...

I would highly suggest that you contact the U.S. consulate in either Sydney, Melbourne, or Perth...

[ Edit: Edited on Feb 17, 2008, at 1:19 PM by Answer man ]

3. Posted by tim.jones (Budding Member 4 posts) 8y

Thanks for your detail reponse. As you suggested that Its case specific and I should contact US consulate.
Can I ask them over the phone or through email?
Do I need to give out my details to them before I know the reply?
Is it worth to go for expungement of my case (this case is more than 8 years old) for a job in USA?

Thankyou once again

4. Posted by snowplain (Budding Member 21 posts) 8y

I'm not a lawyer, so take this for what it is, but my understanding is that if you have no conviction recorded you should have no criminal record for the purposes of the information encoded on your passport - that's essentially what receiving vs not receiving a conviction means. Dismissing without conviction is done precisely for the purpose of ensuring you don't have a criminal record - generally done with teenagers etc so as not to mess up their futures. It's also why, for instance, Ben Cousins' lawyers successfully argued for no conviction recorded recently - so it wouldn't interfere with him going to rehab in the US.

I don't think you're going to have any problems. I work in the Australian court system and I know how massively disorganised it is - it's disturbingly hit and miss as to whether serious convicted crimes make it into the right databases with any amount of accuracy. Judges frequently don't have full criminal records in front of them at sentencing, so I'd be very surprised if a minor charge dismissed without conviction eight years ago made it into the passport database, even if it actually is supposed to.

Even though a conviction isn't recorded, the conviction part is not technically relevant as per the previous response where you've admitted to the offence, so it may be that you are supposed to mention this to US immigration. As policy I won't advise anyone to be anything other than completely forthright with US immigration because it's generally a bad idea, but it's arguable as to whether this is a category of offence that needs mentioned, and a lot of people honestly misunderstand this point anyway - it's entirely up to you.

In the absence of a conviction you will or should have been instructed to answer no to the 'do you have a criminal record?' question within Australia. So if you do choose to answer no to US immigration and by some miracle it shows up you certainly have a reasonable explanation - you can say you were instructed to answer no to that question by Australian police, which is the truth, and furthermore, that you thought it not a category of crime that you need to disclose anyway. I suspect they'll consider either of those explanations independently credible, collectively even moreso, and take it from there without prejudice - although that will be to their discretion. If it does show up, a minor shoplifting non-conviction many years ago (I'm guessing you were pretty young) is unlikely to prohibit you from receiving a visa provided you are honest about it if they do in fact raise the issue.

If you're worried about this, some US and other visa types require you to get a police certificate from your home country, which is basically a printout of any criminal record you have. If you go into any police station and ask for that and explain it's for a visa application they'll get you an official printout (it normally takes a few days). That should show you what your record is, if any, and the police may also give you some advice on where you stand as far as it being recorded elsewhere. If you're really worried about this it can't hurt to go see an immigration lawyer - you'll find US immigration specialists in every major city in Australia. Giood luck :)

5. Posted by tim.jones (Budding Member 4 posts) 8y

Thanks for the detail reply Snowplain. As suggested I discussed with the immigration lawyer. He too mentioned me to get a recent police clearence certificate. But the thing is do i need to get that certificate for a JOB purpose or for VISA purpose? (as i will be doing both so do i need to get 2 police clearances? one for visa purpose and one for job purpose? By the way i got detailed summary from court. And the immigration lawyer said to get police clearance for job purpose)

I got few doubt which is making me really worried.
(1) Am i eligible for "USA Visa Waiver" to travel to usa as an Australian Citizen? (with that non conviction minor theft charge that was dropped and i got 6 month good behavior bond 8 years ago)
I am planning my first short trip to USA on VISA WAIVER.

(2) After accepting the Job offer in USA and while applying for E3 visa (My second trip to USA) do i need to mention about this in my E3 visa application form to the questions related to criminal offences as YES or NO? if i have ever been arrested, charged, went to court....?

I got****
>>>Court summary,
>>>Police Clearence Certificate (which shows no disclosable matter)

I have mentioned this to australian immigration department when applying for Australian Citizenship as they found out. While applying for my PR application they had no such question asking for non conviction and the police clearence certificate said no disclosable matter but in Citizenship they did have question asking for non conviction. I ticked NO thinking it didnt need to be disclosed and they found out and asked for the explanation and i presented the court copy. But anyhow I still recieved my Australian Citizenship. So my worry is as the australian immigration knows so they must be sharing the database for immigration purpose with usa and other countries. So I feel that they can easily find out. But what i am not sure do i qualify for VISA WAIVER? or do i need to apply for visa for USA and mention them about that?


Please help me on this matter as i am really confused.

The case is more than 8 year old when i was 22

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