travel to US under VWP (ie as a tourist) whilst I601 is being approved

[lindsaycaldwell 0]

I applied for a US spouse visa. Everything appeared in order at the visa interview at the London embassy then a couple of weeks later I received notice that I need to apply for an I601 waiver.

Inadmissibility was based on an offense on my Australian police report 10 years ago. The offense was very minor (simple case of using an invalid ticket on a train - I went to court and pleaded guilty - hearing was over in 2 minutes and I was ordered to pay a fine with no conviction) but was recorded as "obtaining financial advantage by deception - No conviction" so a consular official presumably interpreted as a major fraud charge.

I was extremely shocked to find out the potential delay resulting from having to submit an I601.

My question is - can I travel to the US under a tourist visa (I am a UK citizen and already have an approved Visa Waiver Program) for 3 months whilst the 601 is pending?

[Hypnos 6,578]

You would need to apply for a new ESTA in light of this new information. Given that you would now have to answer "Yes" to questions B and F (or F only if you weren't arrested for the historical offence), it's unlikely such an ESTA will be approved (but it can't hurt to try).

Edited July 10, 2014 by Hypnos

[Boiler 45,949]

So you declared the offence and still were approved for ESTA?

[JohnR! 5,495]

Your VWP privileges are revoked as a consequence of your waiver, which means you would need a tourist visa to enter the US, and you need a waiver for that as well.

Unfortunately you won't be able to travel under VWP.

[NikLR 13,232]

~~moved to work and travel during immigration from IR1/CR1 process and procedures as topic isnt about IR1 process but travel~~

[Hypnos 6,578]

Your VWP privileges are revoked as a consequence of your waiver, which means you would need a tourist visa to enter the US, and you need a waiver for that as well.

Unfortunately you won't be able to travel under VWP.

This is not correct. All that has been invalidated is the OP's existing ESTA authorisation, if it was obtained prior to their visa denial. They are free to apply for a new ESTA, although it's unlikely it will be approved.

[lindsaycaldwell 0]

thanks for the replies

I just checked my VWP application status and the ESTA status is now "Travel not authorized" so I assume this has been updated following my visa application being deemed inadmissible.

So my new question is should I reapply for a new VWP and if so should I reapply using my Australian rather than UK passport? (UK passport was used for my previous VWP and spouse immigration visa application)

VWP application form

As I have neither been arrested or convicted of any charge ever I can answer "NO" to (B).

Does the requirement to submit the I601 mean I need to answer "YES" to ?

F)Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa canceled?

If have to answer yes to will this automatically = rejection

[Boiler 45,949]

Sounds like you have an arrest, a conviction and a misrepresentation when completing ESTA to deal with.

Often the Misrepresentation is the most difficult bit.

Have you appointed a Lawyer yet?

Edited July 10, 2014 by Boiler

[Hypnos 6,578]

If you were neither arrested nor convicted then you may be able to answer "No" to B. Some cautions or pleas are considered convictions for immigration purposes though, so you may want to ask an immigration attorney first.

You must answer "Yes" to F because you have been refused a visa. It's highly likely this will lead to your ESTA being denied, although as I understand it it isn't automatic, just a very big negative.

It won't make a difference which passport you use to apply on, as the questions will need to be answered the same regardless.

[lindsaycaldwell 0]

the flower symbol in my last post is F btw

Boiler, confused by comment "Sounds like you have an arrest, a conviction and a misrepresentation when completing ESTA to deal with"

As stated I have No convictions and No arrests ever.

I previously applied for the VWP last year before applying for the spouse immigration visa

[Hypnos 6,578]

I believe Boiler means that if you were required to answer "Yes" to B but didn't, this may be considered misrepresentation.

Asking a lawyer is probably the way to go, since as I said you paid a fine which may be seen as a conviction under US immigration law.

[Boiler 45,949]

Go to court, found guilty, pay a fine.

That is a conviction

Go to court, found innocent, no penalty.

That is not a conviction

[Hypnos 6,578]

OP stated they pleaded guilty and paid a fine.

Edited July 11, 2014 by Hypnos

[lindsaycaldwell 0]

Thanks for the clarification

Is there an alternative to the VWP in terms of entering the US on a tourist visa?

[Hypnos 6,578]

No. Everyone who isn't a US citizen or LPR requires either a valid visa or a valid ESTA (to seek entry on the VWP).