VWP - Criminal Record

[Shanec86 0]

Hi everyone,

Not sore if this is the right part of the forum, hope so if not sorry!

Ok, So I'm currently applying for a Fiance visa to marry in the us (I'm from England and Fiancee is a USC) Everything is going well and I'm currently waiting for an interview appointment.

My question is this. We plan on getting married in July and some of my family want to come over for the wedding. My dad spent some time in prison a long time ago. Not sure exactly when I can find out but it was before I was born so more than 23 years ago. Also unsure how long he was in prison for I don't think it was longer than a year.

So, could he enter on a VWP or would he have to apply for a visitors visa? I've tried looking on the website and it's kind of hard to understand what todo with their fancy over correct confusing wording . I seemed to get that if the crime was committed more than 5 years ago it's ok? but then some other places said that this isn't true? and I'm really confused. Would be good to know asap so We know weather he should apply for a visitors visa or just come and enter the US under the VWP.

Thanks for any help given!

Shane

[English Muffin 59]

It will depend on what the crime was.

[Sc0tt28 26]

It will depend on what the crime was.

Yep.

[Sc0tt28 26]

Hi everyone,

Not sore if this is the right part of the forum, hope so if not sorry!

Ok, So I'm currently applying for a Fiance visa to marry in the us (I'm from England and Fiancee is a USC) Everything is going well and I'm currently waiting for an interview appointment.

My question is this. We plan on getting married in July and some of my family want to come over for the wedding. My dad spent some time in prison a long time ago. Not sure exactly when I can find out but it was before I was born so more than 23 years ago. Also unsure how long he was in prison for I don't think it was longer than a year.

So, could he enter on a VWP or would he have to apply for a visitors visa? I've tried looking on the website and it's kind of hard to understand what todo with their fancy over correct confusing wording . I seemed to get that if the crime was committed more than 5 years ago it's ok? but then some other places said that this isn't true? and I'm really confused. Would be good to know asap so We know weather he should apply for a visitors visa or just come and enter the US under the VWP.

Thanks for any help given!

Shane

What kind of "fancy over correct confusing wording" are you talking about? VWP form asks "Have you ever been arrested or convicted for an offense or crime involving moral turpitude?" Then it gives some "or this/that type of thing" but if you answer yes before you get to the first "or" then the answer is yes. Not too confusing.

[Shanec86 0]

What kind of "fancy over correct confusing wording" are you talking about? VWP form asks "Have you ever been arrested or convicted for an offense or crime involving moral turpitude?" Then it gives some "or this/that type of thing" but if you answer yes before you get to the first "or" then the answer is yes. Not too confusing.

Hi and thanks for the help so far.

The "fancy and over correct cofusing wording" I'm talking about is this.

(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).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

Personally I find that hard to make sense of. And what exactly is "an offense or crime involving moral turpitude"

My dad was in prison for fighting when he was younger. No rape or arson or terrorist crimes. Just some fighting when he was younger.

Thanks for any help you guys can give.

Shane

[English Muffin 59]

My dad was in prison for fighting when he was younger. No rape or arson or terrorist crimes. Just some fighting when he was younger.

What was the exact offence? He would not have been charged with 'fighting', it would be something along the lines of 'assault'. Some assaults are CIMTs and some aren't, so you will need to know exactly what he was convicted of.

[Shanec86 0]

What was the exact offence? He would not have been charged with 'fighting', it would be something along the lines of 'assault'. Some assaults are CIMTs and some aren't, so you will need to know exactly what he was convicted of.

The offence was GBH and he went to prison for 12 months.

[Sc0tt28 26]

Hi and thanks for the help so far.

The "fancy and over correct cofusing wording" I'm talking about is this.

(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).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were 5 years or more is inadmissible.

Personally I find that hard to make sense of. And what exactly is "an offense or crime involving moral turpitude"

My dad was in prison for fighting when he was younger. No rape or arson or terrorist crimes. Just some fighting when he was younger.

Thanks for any help you guys can give.

Shane

Ok, the INA can be hard to read at times but with a little bit of patience (wait...make that a lot of patience) and a dictionary, a person can usually figure it out. First thing you want to do is go over it line by line...I'll help you out.

Of course you know that the lines following (2) and (A) are just talking about the particular type of inadmissibility that your father may or may not fall under.

The next line, (i) gives you a description of the first type of inadmissibility...convictions of certain crimes. It reads all the way down to the last 2 words in section (II) where it says "is inadmissible". That means that if any of the information between (i) and (II) are true, then your father is inadmissible.

For section (I) we'll break down the meaning of "a crime involving moral turpitude", otherwise known as a CIMT. If you don't know what turpitude means....that is where the dictionary comes in handy. So...

--a crime = an act punishable by law

--involving = to be a part of

--moral = knowing right from wrong

--turpitude = a corrupt or depraved or degenerate act or practice

So long story short, a CIMT is a crime that is "really bad".

Next, for (II), it covers violations of laws or regulations (laws of any country or state) regarding controlled substances (drugs). Meaning, if he was convicted of a drug related charge, he could be inadmissible.

Let's see what we've got so far.

INA 212(a)(2)(A)(i)(I) is the "ground of inadmissibility" that covers the CIMTs that we went over. So what you do is you just read the parts that the section of the INA covers for that particular charge.

All of the inadmissibility charges start with "INA 212(a)", which you seem to already know because you found the specific section that might apply to your father. So we follow the numbers/letters to the next part:

(2) Criminal and related grounds

(A) Conviction of certain crimes

(i) 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

We didn't go over section (i) very much. This is where things get a little tricky. Its easy to know if a person has been "convicted of" the crime, there is a record of it. But let's say he's gotten a pardon, its no longer in the records but the US doesn't recognize foreign pardons and so if your dad "admits having committed" a crime then he can be inadmissible. This isn't quite as easy as it sounds so don't freak out or anything. What I mean by that is, someone could slip and say something that didn't actually happen but it was so long ago that the details are fuzzy and doesn't quite remember exactly who did what. That's where the part about "admits committing acts which constitute the essential elements of" comes into play. You ever watch TV (cop shows or whatever) where somebody's son kills his friend but the son's dad says that he did it so that his son can get away with it? It never quite works out that way because of the "essential elements" of the crime. Meaning, for every crime there is a certain number of things that need to be true for a person to be convicted of that crime. Of course every crime is different but if your dad didn't do certain "elements" or parts of the crime then he can't be found inadmissible....not by admission anyway....if he's got a conviction then thats another story obviously because a prosecutor already found that he did meet the "essential elements".

Next part is actually easier if you believe that. Where it says "(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if".

Exceptions! Yay! We love exceptions because that means everything we just talked about doesn't matter if certain things are true.

In line (ii) it kinda sneaks in the bit about "an alien who committed only one crime", thats important because if there were two crimes, then the exception doesn't apply.

Part (I) - If he was under 18 years old (a minor) and (not "or") the crime happened more than 5 years ago.

Example: He was playing with matches when he was 16, burned someones house down and got convicted of arson. If he wants to come to the US when he's 20, he can't because its been less than 5 years. If he wants to come when he is 22, then he can because its been more than 5 years. Of course if he was playing with matches on his 18th birthday and burned someone's house down, then he's no longer a minor and this exception no longer applies.

OR

In section (II), its a little trickier but I'll just use another example to try to explain it. We'll use the same arson charge as before. For the sake of my sanity we'll use some generic timeframes and not actual ones ok?

--Arson has a maximum penalty of less than one year jail time but your dad was only sentenced to less than 6 months. Again, I know arson is a CIMT and the maximum penalty would be more than a year -- generic timeframes remember?

So if he was convicted but was only sentenced to less than 6 months, he may be admissible.

And finally part (B), which is pretty easy to follow. It doesn't matter if the crime(s) is a CIMT or not, if the combined sentence(s) of any or all charges is more than 5 years, then he is inadmissible. So lets say that he's Mr. Tough Guy and he likes to fight with people. Let's also assume that none of the charges are CIMTs. If he gets convicted of simple assault and spends 6 months in jail. (Just bear with me ok, I know you wouldn't get 6 months for simple assault, I'm giving another "what if" example here) If he keeps doing this over and over and he's been convicted (total time) for 4 years + 6 months (9 charges? following me? 4 years = 48 months. Add 6 months to the 48 months and you get 54 months. 9 assault charges at 6 months per charge = 54 months). Anyway...if its less than 5 years he may be admissible. That 10th charge would put him above 5 years and he wouldn't be admissible anymore.

And that's it. Easy huh? Find out if it was a CIMT. Anymore questions ask someone else because my brain hurts now. LOL just kidding you can still ask me if you want. Probably wouldn't want to after reading all this but who knows.

[Sc0tt28 26]

The offence was GBH and he went to prison for 12 months.

That is probably (it depends on some of those "essential elements" we talked about earlier) a CIMT with a maximum possible sentence of over one year, meaning the exception would not apply.

[Sc0tt28 26]

That is probably (it depends on some of those "essential elements" we talked about earlier) a CIMT with a maximum possible sentence of over one year, meaning the exception would not apply.

Actually I'm going to shut up for a while and let someone else respond because it depends on if he was a minor. Also the fact that it was a conviction doesn't help. Ok, I'm going.

[Shanec86 0]

Scott, Thank you very much!

I will re-read through all of that tomorrow as it's late and my brain is also kind of fried. I think I might have some more questions but I'd like to re-read everything and go through it fully. You really have helped alot though, and I do apprecaite it.

Shane

[Shanec86 0]

Ok, so I've read through it some more now and you did help alot but I still have more questions.

So for part (I) he was over 18 so that doesn't matter.

Part (II) I'm still confused of. My dad was put in prison for GBH and the maximum sentence is five years and he was sentenced to one. So am I right to say this means he would not fall under this as the maximum penalty is more than one year?

So if this is correct then he wouldn't be eligible for the VWP and would have to get a visa, right?

Thanks for any more help.

[Sc0tt28 26]

Ok, so I've read through it some more now and you did help alot but I still have more questions.

So for part (I) he was over 18 so that doesn't matter.

Part (II) I'm still confused of. My dad was put in prison for GBH and the maximum sentence is five years and he was sentenced to one. So am I right to say this means he would not fall under this as the maximum penalty is more than one year?

So if this is correct then he wouldn't be eligible for the VWP and would have to get a visa, right?

Thanks for any more help.

That's correct, the maximum penalty is over a year and he was sentenced to more than 6 months.

He'll need to get a visa and an inadmissibility waiver.

[Brother Hesekiel 2,236]

Call me stupid, that's okay, but I would do this without trying to figure out why the wheel is round:

1) Check ESTA if my dad is eligible for participating in the WVP. Takes minutes and cost nothing.

2) If the ESTA comes back clean, cool. If it comes back negative, apply for a B2.

Not complicated enough? Try everything else first, contact a lawyer, the embassy, an attorney, read case law, etc.

[Shanec86 0]

That's correct, the maximum penalty is over a year and he was sentenced to more than 6 months.

He'll need to get a visa and an inadmissibility waiver.

Hi again,

So my dad sent off for his police records required for getting the visitors visa and they came back clean. His police records are exactly the same as mine they just read "no trace" which it says on a seperate page means you have no record. So I don't know whats happend with his record but if that's what it says then surly he can just go ahead with the VWP? right?

Thanks again for your time.