Skip Navigation

Visa Waiver Programme - The Story So Far

Travel Forums North America Visa Waiver Programme - The Story So Far

1. Posted by AusToUSA (Budding Member 4 posts) 6y

I have recently decided I want to travel to the USA. I live in Brisbane, Australia, and have never been overseas. So, this is all new to me. The trip will be around 3 weeks in length, and sometime during August 2010. So, on November 19, 2009 I picked up my first ever Australian Passport which is valid for 10 years. I then came across the Visa Waiver Programme (Americans spell it "program"), but I came to a bump when it mentioned "Moral Turpitude", as in December 1999 in Brisbane, I was accused of theft (an electric shaver of all things) worth about AU$200. The end result / judgement was conviction not recorded, so I have no criminal record. No issues ever since.

Due to the ambiguous meaning of "Moral Turpitude", I emailed the US Consulate under a different email address (not my main one), with a different name and asked some questions, on the pretence I was asking on behalf of someone else. Result: "theft" of any type is classed as "Moral Turpitude", and under US Law you broke the law and therefore have to explain to the US Consulate what occurred. After this I realised the VWP was too risky to lie on, and instead I have to apply for a full US Visa, and im petrified of this.

The Documents, I have obtained so far are: Passport, Full Birth Certificate, Online Non-Immigrant Visa Application, National Police Certificate with fingerprints, Certificate of Conviction from the QLD Magistrates Court, Proof of Employment, etc. I have made an appointment to see the US Consulate in Sydney on December 21. What I am concerned is this paragraph in the reply from the US Consulate:- "Applicants with prior arrests and convictions, excluding traffic offences, may wish to include any police or court documentation relating to the offence with their application. In some instances a police certificate may be required, and as a precaution applicants are advised to allow up to 8 weeks processing time in the instance that a waiver of ineligibility is required." FYI, I have no criminal history before or after this 1999 incident, and I have never dealt in drugs and dont drink alcohol and not a single speed fine :)

So what I'm trying to figure out based on the paragraph above is do I need "police or court documentation relating to the offence" - in other words do I need the physical charge sheet, court records and arrest sheets for this matter of 10 years ago? I called the Brisbane Magistrates Court today, and they said they only issue "Certificate's of Conviction". This occurred in 1999. Additionally, this link here: http://canberra.usembassy.gov/consular/visas/criminal.html also states "In all cases, you should gather any documents already in your possession which relate to your offense and any subsequent conviction, including court records, arrest sheets, and charge sheets. If you are applying for a visa, you should also be aware that during the course of your application, you may be asked for further documents, such as a current Police Certificate based on a fingerprint check."

So Im basically terrified that the Police Certificate with Fingerprints and the Conviction Certificate will not be enough and that they will request full court documents (charge sheet, court records, arrest sheet), and I dont want to go to all this expense, and realised afterwards I didnt take enough information with me. Am I just over-worrying?

2. Posted by jambo101 (Respected Member 414 posts) 6y

The end result / judgement was conviction not recorded, so I have no criminal record. No issues ever since.

Why did you bother saying anything about it?Seems to me you've totally over complicated the issue,At this point your trip is in the hands of some bureaucrat who may say yes or may say no,had you said nothing about the incident i doubt you would be having the hassle you are now experiencing as the conviction was never recorded.As some one who has crossed the Canada/USA border a thousand times it works best if you just tell em what they want to hear,

Going on vacation.
Never been arrested
3 weeks.
Going To Florida
Never been arrested.
Hometown Montreal.
Thank you, bye.

3. Posted by AusToUSA (Budding Member 4 posts) 6y

Quoting jambo101

The end result / judgement was conviction not recorded, so I have no criminal record. No issues ever since.

Why did you bother saying anything about it?Seems to me you've totally over complicated the issue,At this point your trip is in the hands of some bureaucrat who may say yes or may say no,had you said nothing about the incident i doubt you would be having the hassle you are now experiencing as the conviction was never recorded.As some one who has crossed the Canada/USA border a thousand times it works best if you just tell em what they want to hear,
.

So, Im suppose to take a chance on the hope they dont pick up something - this will lead to more issues. The fact is "moral torpitude" covers any form of theft, no matter how large or small. The US Consulate verified moral turpitude includes this, and despite having "conviction not recorded" the theft was still done despite it having occurred in December 1999, which in their mind means your still a criminal, because to get conviction not recorded you have to plead guilty. The "theft" matter still appears on Court / Police records, so its a bit risky. They warned me not to put "No" on the moral turpitude question because it is lying, and It will cause irreversible issues. Sometimes, dispite the inconvenience, it pays to be honest.

4. Posted by jambo101 (Respected Member 414 posts) 6y

Sometimes, despite the inconvenience, it pays to be honest.

Your logic may be commendable for most situations but If you want to come to America for a holiday it may not be the right logic to accomplish the task as you are dealing with a huge bureaucracy that basically consists of people/robots sitting in cubicles in an office going over endless applications for entry into the country,the slightest negative deviation on an application will get the rubber stamp that says denied and its now up to you to jump through many hoops to amend that decision when a simple no to the question would have got your application passed on.
As for risk?saying no to the past minor criminal matter and you would probably be having a trouble free trip to the US.
Saying yes to the minor criminal offense and you probably wont be going on the trip with out an incredible amount of additional paper work and no guarantee of ultimate success. Good luck and let us know how it turns out.

[ Edit: Edited on 28-Nov-2009, at 03:23 by jambo101 ]

5. Posted by AusToUSA (Budding Member 4 posts) 6y

Quoting jambo101

Sometimes, despite the inconvenience, it pays to be honest.

Your logic may be commendable for most situations but If you want to come to America for a holiday it may not be the right logic to accomplish the task as you are dealing with a huge bureaucracy that basically consists of people/robots sitting in cubicles in an office going over endless applications for entry into the country,the slightest negative deviation on an application will get the rubber stamp that says denied and its now up to you to jump through many hoops to amend that decision when a simple no to the question would have got your application passed on.
As for risk?saying no to the past minor criminal matter and you would probably be having a trouble free trip to the US.
Saying yes to the minor criminal offense and you probably wont be going on the trip with out an incredible amount of additional paper work and no guarantee of ultimate success. Good luck and let us know how it turns out.

I was going to choose NO on the VWP application, but its too risky as "theft" is classed as Moral Turpitude. Even the US Consulate said it was too risky and risk being deported back from the port of entry as I would have lied on the applicaiton. When I emailed the US Consulate I used a different email address with a different name in order to obtain the information required without using my real name. Despite this occurring 10 years ago (I was arrested) and not being recorded against my criminal history / record, a record of the theft is still on the Police system, and according to the US because you did it you need to tell them what happened as "recorded with no conviction" does not apply in the US and means you pleaded guilty (which was done to save time and money) to obtain the "not recorded" verdict. Therefore, if you do lie and they question you about it, it makes things really bad. In this case honesty pays.

Summary: Lie on the WVP and they dig it up in the US - deported and/or banned. Be honest on the Non-Immigrant Visa application, and they will probably issue a Visa with no problems due to the timeframe and the low seriousness of the matter. Furthermore, today I visited the Police Station who verified that the US would see the police record at CBP which would cause even more problems.

[ Edit: Edited on 28-Nov-2009, at 04:56 by AusToUSA ]

6. Posted by s96024 (Full Member 106 posts) 6y

Simple answer to this question. People keep asking though. Don't declare it! Unless you have been convicted of Murder, Rape, Kidnap, Drugs or any other serious crimes. Being accused of shoplifting 10 years ago and not being convicted would not have been a problem. Others be warned this is one case where honesty is not the best policy.

7. Posted by AusToUSA (Budding Member 4 posts) 6y

Quoting s96024

Simple answer to this question. People keep asking though. Don't declare it! Unless you have been convicted of Murder, Rape, Kidnap, Drugs or any other serious crimes. Being accused of shoplifting 10 years ago and not being convicted would not have been a problem. Others be warned this is one case where honesty is not the best policy.

Problem is the VWP asks if you have been arrested, well yes I was but got conviction not recorded. It also doesnt mention a particular timeframe etc. Think its too risky to apply for the VWP just to see the result with the NO option. The conviction was not physically put on my criminal record, but a record of it still exists on the Qld Police system. Could do it as a backup, but would this cause more issues, and then if any questions asked show the Police Certificate / Conviction Certificate?

They ask

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?

8. Posted by GregW (Travel Guru 2635 posts) 6y

Interesting article here for those interested in the topic. For those considering lying, the consequences of that choice if you are caught are deportation (at your own expense - last minute tickets can be very pricey) and being barred from ever re-entering the USA.

9. Posted by s96024 (Full Member 106 posts) 6y

Quoting GregW

Interesting article here for those interested in the topic. For those considering lying, the consequences of that choice if you are caught are deportation (at your own expense - last minute tickets can be very pricey) and being barred from ever re-entering the USA.

You have quoted what a person used as an example in the article has said. It is not a fact and is frankly misleading.It would be against privacy laws for other countries to be able to view your crimnal record for minor things. Even in your own country you have to give consent for someone to view them. Therefore the only way they will find out is if you tell them!

[ Edit: Edited on 30-Nov-2009, at 07:50 by s96024 ]

10. Posted by GregW (Travel Guru 2635 posts) 6y

s96024 - for "minor things" the information is probably not available. The UK and the USA do share information. For example, see this press release from the Customs and Border Protection website , which includes the line that the US and UK share information to "to verify travel documents, detect false identities, determine admissibility, carry out customs purposes and identify persons traveling between our countries who may pose a security risk." (bolding mine). What I have never seen anyone be able to tell me is what the limits of what is shared. In the absence of that information, determining what is "minor" and thus not shared between the two agencies, and what is shared is a guessing game.

Anyway, the primary purpose of my post was to provide people an understanding of what the potential consequences are, so that they can make a determination if they want to take the risk.

Greg