HELP NEEDED QUICK

[Rebecca Jo 1,962]

It sounds like you were never arrested or convicted of anything, right? Because a caution is given without an actual arrest. So you were fine, because the ESTA question is

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?

and your caution doesn't fall under that

It's helpful to have an understand of the relevant points of a law if you are going to quote the law.

The relevant point is whether or not an offense is a CMIT. Not whether or not there was an arrest or conviction for an offense.

Fiddling about with traffic cones is not a CMIT.

[civilservant 42]

Fiddling about with traffic cones is not a CMIT.

If the OP was cautioned for theft, it most certainly IS a CIMT.

[Rebecca Jo 1,962]

How can THEFT not be a CIMT? Some people on here need a serious reality check.

Im not saying it will be a problem, I am saying that you were possibly ineligible for the VWP. If you had entered yes to the CIMT question on ESTA (which you should have done) I am certain travel would not have been authorised and you would have needed to apply for a B2.

Thats beside the point though, if you did not know then you cannot have made a material misrepresentation.

As for not being arrested, if you are given your rights at any point that is an arrest - unless it is specifically stated you are not under arrest.

Personally, I would ask this question over at BritishExpats.com, we over there are far more knowledge about the minuta of the law then the people here seem to be.

Once again, it is not the arrest itself that defines a CMIT.

When one is arrested, one is charged. Whatever the charge is, there is a possible maximum sentence. Whatever the possible maximum sentence might be for that charge determines whether or not the Service considers that crime to be a CMIT.

You need to calm down.

Edited May 25, 2013 by Rebecca Jo

[Rebecca Jo 1,962]

http://www.justice.gov/eoir/vll/intdec/vol14/2194.pdf

Except as otherwise provided in this Act, the following classes of aliens shall

be ineligible to receive visas and shall be excluded from admission into the

United States: (9) Aliens who have been convicted of a

crime involving moral

turpitude

(other than a purely political offense)... ; except that aliens who have

committed only one such crime while under the age of eighteen years may be

granted a visa and admitted if the crime was committed more than five years

prior to the date of the application for a visa or other documentation, and more

than five years prior to date of application for admission to the United States,

unless the crime resulted in confinement in a prison or correctional institution,

in

which case such alien must have been released from such confinement more

than five years prior to the date of the application for a visa or other documen-

tation, and for admission, to the United States. Any alien who would be exclud-

able because of the conviction

,

of

misdemeanor classifiable as a petty offense

under the provisions of section 1(3) of title 18, United States Code, by reason of

the punishment actually imposed, ... may be granted a visa and admitted to the

United States if otherwise admissible:

Provided,

That the alien has committed

only one such offense. . . ."

(Emphasis supplied.)

[tedyc 4]

To the OP, you can't change what happened in the past so just disclose the incident on your immigration forms and explain it to the CO at the interview. We all have a tendency to over-analyse every detail of our cases and often worry for no reason - the reality is your offense is at the very minor end of the scale (won't get into the debate about CIMT) and is not the type of the thing that typically prevents people from getting a visa. By the sounds of it you did not deliberately misrepresent the situation at any point so just be open and honest.

My wife had applied for 3 non-immigrant visas in the past without disclosing a caution/arrest (admittedly not a CIMT), but disclosed the incident on her DS-230. The CO asked her at the interview about it, said "is that it?" almost laughing about the minor nature of it before moving on to talking about our relationship which she seemed far more interested in. At no point did the failure to disclose the incident on previous non-immigration visas come up - she also used the VWP extensively, but since there was no doubt about her offense not being a CIMT it wasn't exactly the same as your situation.

[Ellio 1]

Hi chrisclassic.

I will throw my twopence worth in here seeing that I have just recently covered mountains of research on this in the last 5 weeks.

If anywhere on your subject access report (especially under offence description) the word " theft" is used, as civalservant has mentioned, it is indeed classed as a crime of moral torpitude, however petty it seems I know! . Now you should not have travelled on VWP last year you should have applied at the embassy for the visa and ticked "yes" to crimes involving moral torpitude. Don't get me wrong most people tick "no", but most people don't think they may be immigrating at some point in the future. Your VWP or online ESTA does not go and check the police national computer to check your UK conviction record. They rely on you telling the truth.

Now, if during your I -129f application you ticked "yes" to crimes CIMT and that offence is the only thing on your record as you say, I really don't see any issues for you. However if you ticked "no" to the CIMT question on your application and you are still in the early stages waiting for approval you may want to consider contacting them before it goes any further and correcting the mistake.

If you let this run to interview you COULD find yourself in a heap of trouble. The consular staff may look on the light side of the offence but the FACT that you withheld information in order to obtain a visa ( i know you didnt do it purposely ) is "Misrepresentation" ( immigration fraud ) and could ultimately cost you a lifetime ban.

The offence itself would be covered under the "Petty Offence Exception". http://nortontooby.com/topics/petty_offense_exception but only if you admit to it beforehand.

It's up to though. If you want to be on pins for the remaining time and wing it with prayer on the day, good luck. Me, I would do all I can to fix it ASAP before it goes any deeper. Your reason for offering late information on your K1 application is because you only just received your subject access report and have acted upon the issue immediately.

Good luck.

[civilservant 42]

Once again, it is not the arrest itself that defines a CMIT.

When one is arrested, one is charged. Whatever the charge is, there is a possible maximum sentence. Whatever the possible maximum sentence might be for that charge determines whether or not the Service considers that crime to be a CMIT.

You need to calm down.

I never said it was.

The fact is , if the OP had read the questions as stated they could reasonably have said no. It is NOT the sentence that determines if it is a CIMT at all.

For example, theft is triable either way. 6 months on summary in the magistrates, 7 years on indictment in the Crown Court.

Are you trying to tell me that because a Mags can only give 6 months that theft that resulted in a trial there isn't a CIMT? Because thats simply rubbish.

You're giving incorrect advice, and it isn't helpful.

`Ellio - Finally someone with some common sense, and some correct advice!

Edited May 25, 2013 by civilservant

[Rebecca Jo 1,962]

I never said it was.

The fact is , if the OP had read the questions as stated they could reasonably have said no. It is NOT the sentence that determines if it is a CIMT at all.

For example, theft is triable either way. 6 months on summary in the magistrates, 7 years on indictment in the Crown Court.

Are you trying to tell me that because a Mags can only give 6 months that theft that resulted in a trial there isn't a CIMT? Because thats simply rubbish.

You're giving incorrect advice, and it isn't helpful.

The nature of an offense dictates which court handles it. Traffic cones aren't headed to Crown Court just because the docket in magistrate court is full. Perhaps you are unfamiliar with the concept of the punishment fitting the crime?

Hi chrisclassic.

I will throw my twopence worth in here seeing that I have just recently covered mountains of research on this in the last 5 weeks.

If anywhere on your subject access report (especially under offence description) the word " theft" is used, as civalservant has mentioned, it is indeed classed as a crime of moral torpitude, however petty it seems I know! . Now you should not have travelled on VWP last year you should have applied at the embassy for the visa and ticked "yes" to crimes involving moral torpitude. Don't get me wrong most people tick "no", but most people don't think they may be immigrating at some point in the future. Your VWP or online ESTA does not go and check the police national computer to check your UK conviction record. They rely on you telling the truth.

Now, if during your I -129f application you ticked "yes" to crimes CIMT and that offence is the only thing on your record as you say, I really don't see any issues for you. However if you ticked "no" to the CIMT question on your application and you are still in the early stages waiting for approval you may want to consider contacting them before it goes any further and correcting the mistake.

If you let this run to interview you COULD find yourself in a heap of trouble. The consular staff may look on the light side of the offence but the FACT that you withheld information in order to obtain a visa ( i know you didnt do it purposely ) is "Misrepresentation" ( immigration fraud ) and could ultimately cost you a lifetime ban.

The offence itself would be covered under the "Petty Offence Exception". http://nortontooby.com/topics/petty_offense_exception but only if you admit to it beforehand.

It's up to though. If you want to be on pins for the remaining time and wing it with prayer on the day, good luck. Me, I would do all I can to fix it ASAP before it goes any deeper. Your reason for offering late information on your K1 application is because you only just received your subject access report and have acted upon the issue immediately.

Good luck.

Refresh my memory.

You went to your interview without your subject access report, correct?

[civilservant 42]

The nature of an offense dictates which court handles it. Traffic cones aren't headed to Crown Court just because the docket in magistrate court is full. Perhaps you are unfamiliar with the concept of the punishment fitting the crime?

Refresh my memory.

You went to your interview without your subject access report, correct?

Also not true, a triable wither way offence can be tried either way at the request of the defendant also.

It dosen't matter if it was theft of a traffic cone, a million quid or of a 1p sweet. The OP made an admittance of guilt to a CIMT, so it should have been declared on ESTA, and ESTA would almost certainly have been denied.

I'll reiterate that I don't think it will cause a huge problem, but it should have been declared.

[Rebecca Jo 1,962]

Also not true, a triable wither way offence can be tried either way at the request of the defendant also.

It dosen't matter if it was theft of a traffic cone, a million quid or of a 1p sweet. The OP made an admittance of guilt to a CIMT, so it should have been declared on ESTA, and ESTA would almost certainly have been denied.

I'll reiterate that I don't think it will cause a huge problem, but it should have been declared.

Defendant can request all they like. The courts time will not be wasted on triviality and no solicitor worth their salt will get their client in such a predicament!

It may well be the offense should have been declared on ESTA. This is nothing new under the sun either. Due to the English common law concept of spent convictions, many a Brit has made the same mistake. And it's been happening for donkey's years before ESTA was ever dreamed up.

There is a reason the US consulate changed its policy of asking for ACPO reports rather than local police certificates, and that reason is the ability of the ACPO report to give a "no live trace" rendering. Prior to ACPO, local reports often didn't reveal petty offenses. "No live trace" is a tip-off to the CO that there is indeed something out there which needs investigating. As such, the CO will require a subject access report to render a decision. Anecdotal evidence on these forums indicates that "no live trace" usually reveals ONE offense, which despite the fact that the offense may be a CMIT, the CO may overlook ONE offense (go back to the precendent case law I gave you earlier).

[Ellio 1]

Hi Rebecca. Yes I did go without my subject access report, more fool me and it cost me what I expect is a delay of about 8 weeks by the time it's sorted. I'm hoping to have visa in hand in the next few weeks though. I only had 1 caution for "public disorder", no court, no fine etc. I expected worse for some reason but that was just my paranoia I think ?.

One thing I forgot to mention to chrisclassic though is that "misrepresentation" requires the non disclosure of a "material fact" . The offence would not have been material to him obtaining the visa but still may cause issues down the line with the dreaded Administartive Processing for non disclosure. So get in touch with USCIS or the embassy depending on where you're at in the process and fix it now, save yourself potential problems on interview day.

[Rebecca Jo 1,962]

Hi Rebecca. Yes I did go without my subject access report, more fool me and it cost me what I expect is a delay of about 8 weeks by the time it's sorted. I'm hoping to have visa in hand in the next few weeks though. I only had 1 caution for "public disorder", no court, no fine etc. I expected worse for some reason but that was just my paranoia I think ?.

One thing I forgot to mention to chrisclassic though is that "misrepresentation" requires the non disclosure of a "material fact" . The offence would not have been material to him obtaining the visa but still may cause issues down the line with the dreaded Administartive Processing for non disclosure. So get in touch with USCIS or the embassy depending on where you're at in the process and fix it now, save yourself potential problems on interview day.

Thanks for the update.

The consular process is set up so that any issue is dealt with at interview. There are no "decision makers" at any point after NVC except for the CO. That's why there ARE interviews - to take care of anything that has cropped up since the case was approved in the US. That means data from the medical; the police report - anything at all. So trying to contact the consulate midstream of the process is fruitless. Applicants with a "no live trace" on the report just need to deal with the issue when the time comes at interview. That is how one will stay out of Administrative Processing.

[chrisclassic 14]

Hi chrisclassic.

I will throw my twopence worth in here seeing that I have just recently covered mountains of research on this in the last 5 weeks.

If anywhere on your subject access report (especially under offence description) the word " theft" is used, as civalservant has mentioned, it is indeed classed as a crime of moral torpitude, however petty it seems I know! . Now you should not have travelled on VWP last year you should have applied at the embassy for the visa and ticked "yes" to crimes involving moral torpitude. Don't get me wrong most people tick "no", but most people don't think they may be immigrating at some point in the future. Your VWP or online ESTA does not go and check the police national computer to check your UK conviction record. They rely on you telling the truth.

Now, if during your I -129f application you ticked "yes" to crimes CIMT and that offence is the only thing on your record as you say, I really don't see any issues for you. However if you ticked "no" to the CIMT question on your application and you are still in the early stages waiting for approval you may want to consider contacting them before it goes any further and correcting the mistake.

If you let this run to interview you COULD find yourself in a heap of trouble. The consular staff may look on the light side of the offence but the FACT that you withheld information in order to obtain a visa ( i know you didnt do it purposely ) is "Misrepresentation" ( immigration fraud ) and could ultimately cost you a lifetime ban.

The offence itself would be covered under the "Petty Offence Exception". http://nortontooby.com/topics/petty_offense_exception but only if you admit to it beforehand.

It's up to though. If you want to be on pins for the remaining time and wing it with prayer on the day, good luck. Me, I would do all I can to fix it ASAP before it goes any deeper. Your reason for offering late information on your K1 application is because you only just received your subject access report and have acted upon the issue immediately.

Good luck.

dont worry i will be doing that on the forms of the packet 3 by admitting the truth as i want to be as honest and truthful and will not keep it from them

cheers i know it doesnt ask you on any of the other forms prior to the packet 3

[chrisclassic 14]

just to let everyone know im waiting for the packet 3 i have my acpo and my subject access report i will put on the form about a cimt on there i will disclose everything as i am a very truthful person

i was just concerned about the vwp or will they overlook that

as it is only one crime for a cone i pinched and wore on my head thats all i know all the rules

[Nich-Nick 3,354]

So get in touch with USCIS or the embassy depending on where you're at in the process and fix it now, save yourself potential problems on interview day.

Elio--

What is there to fix now? He has filled out and signed one form thus far...the G-325. It doesnt ask about arrests. When the time comes to fill out the DS156 for London, he will answer yes to arrest/conviction question. He hasn't done any false paperwork toward applying for a visa that I can tell. At his interview he will show his report and tell about the traffic cones. Did I lose the plot somewhere? What needs to be fixed with USCIS and the embassy?