Do I need to disclose an arrest to a visa officer?

Travel Forums General Talk Do I need to disclose an arrest to a visa officer?

1. Posted by Matt19019 (Budding Member 4 posts) 1w Star this if you like it!

Hello not sure if this is a topic anyone can give me some advice on but here goes

Basically I'm due to marry my American fiancee in the USA soon with the 90 days we've been together 5.5 years I live in the UK and she lives in Michigan USA we have applied for the i-129f and have had our i-797 notice of action back so I think this I believe is when the US embassy starts looking at me as a person and I have to have a interview however I know one of the questions they will ask me is if I've ever been arrested which I have been 6 years ago and I was on the police national computer but I was not charged and the case was NFA (no further action) I'll give some context as to what I was brought in for questioning for and it was in regards to a doctored Photoshopped pseudo image that was sent in a group chat on WhatsApp with me and four friends in the image was that of a transexual person of whom had been photoshopped heavily and the persons head had been replaced by that of a horses head from my knowledge I then sent that image (because I thought it was mildly funny being young at the time in college) to another friend instead on Facebook messenger but it got flagged for indecent imagery and unbeknownst to me and my friends it was that of an underage girl 15/16 we couldn't have known this as it was a screenshot from a meme website and it circulated around college at the time but I was arrested for sending this image on Facebook but was not charged and my case was closed after the interview however it is still against my name under my access request which isn't disclosed anywhere but on an enhanced DBs check potentially. I've requested from the police for my visa a police certificate which should come up as no trace (nothing found) because I wasn't charged so my question is if I provide this paperwork which should have no information I'm regards to this incident should I still disclose this incident to the interviewer on the day?

I'm in the process now of getting this removed against my name on the police computer so that there will be no record of this ever happening because I know what most people would assume when they read such a thing on an enhanced check and I don't want to be associated with something like that when it was something I couldn't have known about when sending.

Can anyone advise me please?

2. Posted by leics2 (Travel Guru 2304 posts) 1w 1 Star this if you like it!

>should I still disclose this incident to the interviewer on the day?

In my opinion, having known someone in a very similar situation, you should definitely tell the interviewing officer.

You will be asked if you have ever been arrested. You have been arrested. It doesn't matter whether or not a charge followed that arrest. Saying 'no' could be deemed deliberate fraud (making fraudulent statements on a visa application is a very serious offence in the US) and, imo, simply isn't worth the risk.

The officer will ask and you can then explain the exact circumstances. Be open, honest and courteous throughout. Take all the relevant documentation with you (the officer may or may not be interested in looking at it). You can also explain your request for PNC removal and take all documentation relating to that with you.

US officers who conduct visa interviews are fully aware of UK laws and processes. Their focus is the comparison between the US and UK legal systems in order to determine whether your visa application is affected by an equivalent offence under US law. I'd also note that the reasons for and the process of arrest in the US is not the same as in the UK and the officer will know that.

In the case of which I have experience (a similar time-scale to yours) the offence was obstructing a police officer (during a demonstration) and the applicant had accepted a police caution. Once the circumstances were explained to the interviewing officer there was no problem with granting the visa. That offence...and the legal admission of guilt with the acceptance of a police caution....is imo considerably more serious than yours.

So, my advice is to be open and honest and don't be tempted to make a fraudulent declaration. If everything else is ok I really don't think you'll encounter any problems.

Good luck!

3. Posted by Matt19019 (Budding Member 4 posts) 1w Star this if you like it!

Thanks for the advice I do want to be upfront and honest about it I don't want to hide anything because it was a genuine mistake there was no malicious intent to my actions and I don't want it to backfire on me. The only thing that does concern me is that on my esta that my mum filled out for me in late 2019 she put "no" under having been arrested the question exactly was "Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?" My incident didn't pertain to any of the ones listed in that sentence and she felt the answer no was adequate as technically it did not result in any serious damage to someone or property or at least she didn't think so having known what about the incident had happened she figured it was a Photoshopped person who probably didn't even exist or couldn't be identified as it no longer resembled a person having being doctored and I was under the same opinion but I've also read if you've ever been arrested the esta route isn't the way to go instead a visa would be advised. But this is the situation I find myself in I do wish I had selected "yes" on that question now not to complicate matters going forward but we were both genuinely under the impression "no" was fine in my circumstance.

What should I do going forward will a visa officer go to that detail and look at my previous esta and ask why I didn't say "yes" to that question I feel like I have a genuine reason as to why I did say "no" to being arrested at the time on the form as I mentioned above.

Thanks for any further advice it's much appreciated.

[ Edit: Edited on 1 Apr 2021, 15:27 GMT by Matt19019 ]

4. Posted by leics2 (Travel Guru 2304 posts) 1w Star this if you like it!

>What should I do going forward will a visa officer go to that detail and look at my previous esta and ask why I didn't say "yes" to that question

I'm afraid that it is very possible you'll be asked and the only thing you can do is to be honest and open about it. You'll need to explain exactly why you did not consider the offence for which you were arrested (you haven't specified the exact wording) does not constitute 'serious harm' to another person.

When it comes to visas and similar the US has a rather vague legal concept called 'crime involving moral turpitude'. Those crimes preclude entry to the US without a #waiver of ineligibility' and are, in essence, what the ESTA question is asking about. Legal systems differ from country to country so US border officers need to decide if a particular arrest/charge in X country would be considered a CIMT in the US.

The advice to avoid an ESTA if you have been arrested and to take the visa route instead is sound. It is never a good idea to make a dubious statement on an ESTA because, as you've discovered, it can come back to bite you in the bum.

The only thing you can do is explain the situation at the time and your reasoning to the interviewing officer. Remember that, as well as the paperwork, he/she will be making his/her decision based on your appearance.....not just how you are clothed (smart casual makes sense to me) but also on the manner in which you answer his/her questions.

Again, good luck!

[ Edit: Edited on 1 Apr 2021, 17:47 GMT by leics2 ]

5. Posted by Matt19019 (Budding Member 4 posts) 1w Star this if you like it!

Thank you very much for the advice it's much appreciated I feel alot more prepared as I wasn't sure what the best thing to do was or what to say on the day of the interview.

I have one more question it's in regards to the paperwork I bring and present to the relevant officer from the time I was arrested I have my PNC (information held about me on the police computer) paperwork but I've read that is only for me for personal use and I shouldn't disclose that to anyone it's even written on top of the form. but there is another form I need to give specifically for being granted a visa called the "police certificate" apparently from what I've researched this is one I need to provide for visas and emigration and I don't shouldn't provide my access request form as that is for personal use only. I've read also from a credible source that US embassy does not have any access to the PNC in the UK which makes sense so with this being said I cannot see it beneficial or advantageous to bring my PNC record I feel it would reflect better on me if I demonstrated a police certificate with the words "no trace" or "no live trace" written on it and then me explain in detail exactly what happened when they ask about any arrests.

On my police certificate the one I will use for visa purposes the one I will present to the visa officer on the day it should have written on it "no trace" meaning I have no charges or proven records against me. But it could say "no live trace" meaning something is there on the system but the police report doesn't divulge any information about what it was. So in this instance if it says no live trace on my police certificate should I then bring my access request certificate the one used for my own personal use to back up what it was that I was arrested for? I don't particularly want to bring that as it has written on it the reason I was brought in and it makes me look bad when though I can explain the incident the way it's written makes me look bad despite it also saying "no charge" "NFA" and class "C" image which is the least severe.

I feel like I should probably get a immigration lawyer but I'm not sure if that will help my case or success I know if I do adequate research I can present myself well but I also don't want to make any mistakes that could prevent me from being granted a visa.

Many thanks if you can advise me what do in regards to what paperwork I should present.

[ Edit: Edited on 1 Apr 2021, 19:07 GMT by Matt19019 ]

6. Posted by leics2 (Travel Guru 2304 posts) 1w Star this if you like it!

>So in this instance if it says no live trace on my police certificate should I then bring my access request certificate the one used for my own personal use to back up what it was that I was arrested for?

You don't 'present' anything except the paperwork required by the interviewing officer. If, during the interview, you think another document may be relevant you can offer to show it to the officer. He/she can accept or refuse that offer. The official link tells you exactly what paperwork will be required:

https://uk.usembassy.gov/visas/fiancee-2/required-documents/

My advice would be to bring all relevant documentation so at least you'll have it to hand if necessary. The interviewing officer will know that the PNC document should not be disclosed so, imo, he/she is highly unlikely to look at it even if you try to offer it (probably not a good idea because you would thus be openly disregarding the clear instruction on said document). The ACRO police certificate is what they actually want to see and you can expect to be asked questions about what happened.

I'll try to set your mind at ease a little. Not being granted a visa on interview day isn't automatically the end of the world. In the unlikely event of you being refused a visa on the day (e.g. because your arrest was in relation to a CIMT and/or because you didn't declare your arrest in the ESTA) imo it's very likely (everything else being ok) that the interviewing officer will recommend you for a 'waiver of ineligibility'. If that happens it will set back your plans a few months...... waivers take time to process.....but (again, imo and everything else being ok) it's highly unlikely that your waiver application will be refused.

You really don't need to do any special research (and they'll soon suss you out if you're lying or just spouting the lines you think they want). Just be honest about yourself, your past life, your relationship with your fiancee and your future life plans in the US. Focus on what interviewing officers want to be certain about: a) you're a responsible, law-abiding and hard-working citizen who is highly unlikely to commit a crime in the US b) your relationship with your fiancee is valid and well-established, not just a 'trick' to get you into the US and c) you have every intention of continuing to be a responsible, law-abiding hard-working citizen once in the US.

>I feel like I should probably get a immigration lawyer

Please don't even think about doing that until you've been flatly refused a visa with no recommendation for waiver and thus want to investigate an appeal. There's absolutely no point in paying out hundreds of pounds (and it will be hundreds, if not more) when it's not necessary. After all, you haven't been charged with or convicted of any crime, let alone a CIMT........you haven't even accepted a caution!

I understand that it's all very worrying and stressful but do try to stay positive and cross your bridges only as and when you come to them.

[ Edit: Edited on 1 Apr 2021, 20:00 GMT by leics2 ]

7. Posted by Matt19019 (Budding Member 4 posts) 1w Star this if you like it!

Does the 'waiver of ineligibility' mean that I will never be able to permanently move over to the US to live with my fiancee? Is the waiver only a temporary thing that grants me a stay for a certain time? I'm hoping that's not the case but I'm not educated on how waivers work as this is all new to me so I'm learning as I go along so I will look into this. Our plan was we apply for the fiancee visa and then we get married within the 90 days and I hopefully transition over there so we can live our lives together.

And I can't tell you enough how much I appreciate your help you've really put my mind at ease in regards to my situation I feel much more confident.

[ Edit: Edited on 1 Apr 2021, 20:56 GMT by Matt19019 ]

8. Posted by leics2 (Travel Guru 2304 posts) 1w Star this if you like it!

>Does the 'waiver of ineligibility' mean that I will never be able to permanently move over to the US to live with my fiancee?

Not automatically, no.

> Is the waiver only a temporary thing that grants me a stay for a certain time?

A waiver doesn't affect how long you can stay on a visit but it can affect how long e.g. a tourist visa remains valid. I've known of waivers being granted for US tourist visa applicants for various lengths of time: a year, 2 years, 5 years or the usual 10 year period. Whilst visas (not just for the US) often have a 'normal' period of validity the relevant authority can always choose to issue them for a shorter period.

Here's the info about the waiver process for immigrant visa applicants (including fiance visas):

https://uk.usembassy.gov/visas/ineligibilities-and-waivers-2/immigrant-visa-applicants/

Only interviewing officers can recommend visa applicants for a waiver but waivers aren't processed by the visa office. They're processed by the U.S. Citizenship and Immigration Services (USCIS)

I'm glad you're feeling more confident. I do understand how worrying it can be.