Criminal Record - Renew B1/B2 or ESTA?

[clarify 0]

Looking for some advice on what to do here. A long time ago (10+ years) I got a criminal record. Back then, it wasn't clear to me if the crime counted as a CIMT or not (it wasn't anything clear cut like fraud or theft), and I even paid to and talked to a US immigration lawyer for advice on whether or not this was a CIMT. His advice was that he also wasn't sure but was leaning towards maybe yes, and so when asked that question on the ESTA I should say yes. I did that, and was predictably declined for an ESTA and advised that I should apply for a visa at the consulate in London.

 

For the record, the "maximum penalty" for the crime I could have received was over one year, but I received a six month sentence suspended for two years. I was not under 18 when the crime was committed either. However, the officer never asked what the maximum sentence for the crime was.

 

I applied for a B1/B2 visa using the normal DS160 form, this was quite some time ago, but as far as I know I never applied for nor received any waiver of inadmissibility. At the consulate I was briefly asked about the crime and I explained it, and the officer just said "you're approved, the visa will be with you in a few weeks", and that was it, I was in and out of that part of the appointment in two minutes. I was granted a 10 year multiple entry B1/B2 visa.

 

That was back in 2014, and consequently my visa is coming towards its expiry in less than a year and I have some questions.

1. Based on my understanding of the US law around being eligible for a visa without a waiver, I believe it's possible I only fall into one of two scenarios?
   1. The consulate officer deemed my offence to not be a CIMT at all
   2. The consulate officer deemed my offence to be a CIMT but exempted me under the "maximum penalty" exception (without asking me what the maximum penalty actually was)
2. In the case that this means it isn't a CIMT, does that mean I can apply for an ESTA and check "no" on the CIMT question (assuming it still exists with that wording)? Even if the answer seems to be technically yes, this part really scares me that they will pick up that I checked yes before and no now and I'll end up being flagged as a "liar" or something and in some worse situation.
3. Can I apply for the ESTA while I still hold the current visa? What happens if the ESTA is declined - does that affect my visa?
4. Is there a question on the ESTA about whether you've ever been refused an ESTA? I don't remember, and if so, and I have to say "yes" to that, it seems like that would be an auto-decline anyway.

 

I'm essentially just wondering if now that I got refused for ESTA once, and had to get a visa, I'm stuck in the cycle of always needing one.

[Crazy Cat 41,836]

Restrored to Tourist Visa forum area.

Edited July 3, 2023 by Crazy Cat

[Vickys_Mom 225]

My understanding is that if you are ever denied ESTA you have to get a visitor's visa from then on.  It's not like they deny you ESTA and then you can have it back later.  One and done.  Someone can correct me if I'm wrong.  I think the fact that you have one right now is to your advantage because you were able to "convince" them you were a good risk back in 2014...and you haven't screwed up since.  (smile)

 

I'm a firm believer in telling the truth as you understand it and giving them enough information to make a decision.  You will see plenty of examples on here where people thought X "might" be a problem but didn't disclose it...and it came to be a problem later.  As a part of your disclosure you can point out what happened in the last interview...just like you explained above.  But don't try to make a decision for them.  If it's bothering you, disclose it and let them decide.

 

Regards,

Vicky's Mom

[clarify 0]

3 minutes ago, Vickys_Mom said:

My understanding is that if you are ever denied ESTA you have to get a visitor's visa from then on.  It's not like they deny you ESTA and then you can have it back later.  One and done.  Someone can correct me if I'm wrong.  I think the fact that you have one right now is to your advantage because you were able to "convince" them you were a good risk back in 2014...and you haven't screwed up since.  (smile)

 

I'm a firm believer in telling the truth as you understand it and giving them enough information to make a decision.  You will see plenty of examples on here where people thought X "might" be a problem but didn't disclose it...and it came to be a problem later.  As a part of your disclosure you can point out what happened in the last interview...just like you explained above.  But don't try to make a decision for them.  If it's bothering you, disclose it and let them decide.

 

Regards,

Vicky's Mom

 

Thanks - this is kind of what I had thought that I would always need a visa. I had read the best thing to do is to be open and honest but don't answer questions you aren't asked. Back in 2014 I hadn't read the law parts around the maximum sentence thing, so I think even if they asked me the maximum sentence I wouldn't have been prepared for that answer and not known it anyway. Obviously if I had proactively offered up the fact the maximum sentence was over a year then it might have been a different matter.

 

Guess I am going for another consulate appointment... is it okay to start the process now knowing that bookings for interviews are months out, even though I have travel to the US booked for later this year? An in progress application won't mess anything up?

[Family 3,988]

17 hours ago, clarify said:

in 2014 I hadn't read the law parts around the maximum sentence thing, so I think even if they asked me the maximum sentence I wouldn't have been prepared for that answer and not known it anyway. Obviously if I had proactively offered up the fact the maximum sentence was over a year then it might have been a different matter.

CO are pretty savvy with the local laws , trust me they did forget to ask you anything ..seems the nature of your offense warranted a pass. 
By US standards anything over one year is a felony  nonetheless. Hopefully at this round , no CIMT finding again. 
 

Excellent pointers from previous poster, you won’t clear pre screen ESTA , but successfully cleared B-2 and clean travel  ( no visa violation) and rap sheet ( no new offenses) , yout chances are excellent. 
 

https://www.ilrc.org/sites/default/files/resources/all_those_rules_cimt_june_2020.pdf