B1/B2 Visa - Australia - Criminal history - Few ties

[VanessaTony 3,567]

Morning all!

It's been a while since I've been on this forum so I'm not sure if things have changed much since I've been on these boards so thought I'd post here for advice. I don't have a positive feeling about this situation so I'm mostly hoping you guys can help me feel less worried!!

I live in Iowa (naturalised USC) with my husband. My sister and her family are visiting at Christmas this year for 2 weeks (just a little bit less actually as they're going to Canada for a wedding in the new year). Absolutely no problem with any of them coming (immigration wise, they've got the VWP sorted). However, my brother is going to come as well, or would like to, HE is the concern.

We believe that we need to apply for a visitor visa because we did a police check and he has a "gun charge" on his record from about 4 years ago (possession of a BB gun, we can get the criminal report if you think that's a good idea). He didn't have to serve any jail time or anything, it was just a fine. The arrest though tends to preclude him from using the VWP (I would expect, unless you can think of a reason it wouldn't). I don't believe the situation itself precludes him from visiting though.

The problem with applying for the visitor visa becomes "ties". He is presently unemployed. He is living with a friend (we could probably get a rental agreement). He has no wife/girlfriend/significant other or child/ren. His flights are going to be paid for by my sister as a Christmas/birthday present, and while here my husband and I will support him together with my sister and her family. My mother isn't in the best health but he doesn't care for her and she's not coming (we could possibly get a letter about her health). We have another sister with a child and neither are coming (nor would she write something for him). Our father passed away 4 years ago and we have no surviving grandparents.

We can only put the best foot forward that we can so our plan is:

1. Letter of invitation/responsibility from myself (I work in the legal profession and of course the fact I legally immigrated) and my husband (Veteran Marine). We are expecting a baby boy at the beginning of December which is the other reason for the visit so I'll include ultrasound pics and documents showing expected due date.

2. Letter of responsibility from my sister and her husband (both in highly respected positions, my sisters even more so)

3. Rental agreement?

4. Criminal record explanation

5. Health documents re mother (not sure if this is possible but we can try)

6. Itinerary of anticipated flight (to show only staying a short period)

7. Proof of families flights

I really don't like our chances honestly. I'm hoping his interviewer takes pity on him or sees the situation for what it is, he TRULY has no plans to stay here. If he's denied at least we tried and keep his options open for a time he gets more ties but it still sucks

Can anyone see something I can't or have some advice for something they think might be beneficial? Do you think they'd allow my sister or her husband attend the interview with him (not necessarily actually interview but be there?). Would they call me do you think? That would be okay too of course.

Thanks in advance for any assistance you can give us!

[milimelo 4,185]

Hi there!

Please look over the VWP/ESTA questions really good before your brother decides to apply for a tourist visa. I'd give the ESTA a go first before setting up visa interview.

Good luck!

[Mollie09 1,543]

You can still try ESTA and disclose the record as appropriate and see what happens. If he is denied and applied for a visa, you're right, his ties don't look great, but at the same time Australia is pretty low-fraud so he has that going for him

[KierenHby 897]

ESTA might be worth a shot if the incident was 4 years back and was not a jailable offense. If he goes for a B2, those letters are unlikely to be looked at. He carries the official police report that details the charges against him and the resolution to the interview. Good luck!

Edited September 14, 2016 by KierenHby

[Boiler 43,419]

Does not sound like a CIMT? Assuming it is not ESTA all the way.

[VanessaTony 3,567]

Thanks everyone! I recognise a lot of your names too

I was thinking ESTA (and I just looked again and it looks like the application site has changed from when I last looked at it) but last time I looked one of the questions was "have you ever been arrested" which is where our concern arose from.

You know, I think you're all right... worst we stand to lose from applying for ESTA is him being denied (plus the fee) and he'd just have to apply for a visa. Good call. Okay that's the first plan of action when we get his passport application finalized (it's been a bit of a process!).

It isn't a CIMT thankfully and could have been much worse (he was not spending time with the best people which has since, understandably, changed somewhat!)

Yeah I figured letters were still kinda junk (they were back in the day) but at the very least it would have all of our contact information on it in case they needed more information/verification. Also, to be completely honest, because the nature of my sisters job (quite high up in the legal field) and my brother-in-law's title/profession/security clearance didn't think it would hurt to show they're not the kind of people to go around breaking laws.

Will tell them to get all the police record/report stuff together just in case as well and get the "packet" together.

Thanks again

[Rc123rc 528]

According to Nolo Legal Materials they list CIMT (Crime of Moral Turpitude) as the following:

• murder
• voluntary manslaughter
• involuntary manslaughter, in some cases
• rape
• spousal abuse
• child abuse
• incest
• kidnapping
• robbery
• aggravated assault
• mayhem
• animal fighting
• theft
• fraud, and
• conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

Possession of a BB Gun does not appear to fall under any of these categories. I'm really curious about that charge because usually you only see it if a BB Gun is brought into a firearms restricted area or brandished in public and is mistaken for a real firearm. Does Australia have that restrictive firearms or simulation firearms laws?

Anyway, try the ESTA and then go for plan B if that doesn't work.

[Boiler 43,419]

VWP has never said no arrests, qualified.

[VanessaTony 3,567]

According to Nolo Legal Materials they list CIMT (Crime of Moral Turpitude) as the following:

• murder
• voluntary manslaughter
• involuntary manslaughter, in some cases
• rape
• spousal abuse
• child abuse
• incest
• kidnapping
• robbery
• aggravated assault
• mayhem
• animal fighting
• theft
• fraud, and
• conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

Possession of a BB Gun does not appear to fall under any of these categories. I'm really curious about that charge because usually you only see it if a BB Gun is brought into a firearms restricted area or brandished in public and is mistaken for a real firearm. Does Australia have that restrictive firearms or simulation firearms laws?

Anyway, try the ESTA and then go for plan B if that doesn't work.

Yeah they do. It's a category H firearm: https://en.wikipedia.org/wiki/Gun_laws_in_Australia#Firearms_categories Long and short of the incident is: an acquaintance was arrested for theft/burglary and when asked about the property he stole, he told police it was at a bunch of people's houses so they carried out searches on those houses, one of which was my brother/parents house. My brother had my dads air rifle in his room (unloaded, no ammo/pellets) and that was sufficient for a gun possession charge, but because it was so minor that's why it was only a (larger than normal) fine.

[Cheezees 1,514]

According to Nolo Legal Materials they list CIMT (Crime of Moral Turpitude) as the following:

• murder
• voluntary manslaughter
• involuntary manslaughter, in some cases
• rape
• spousal abuse
• child abuse
• incest
• kidnapping
• robbery
• aggravated assault
• mayhem - I thought to myself, "What the France is mayhem?". I'd only heard of it in mystery novels and on TV but never thought of the official definition (beyond "rowdy" behaviour). As it turns out, it refers to maiming a victim. Like shooting them in the leg so they can't run away or cutting off their hands so they can't untie themselves. Really gruesome stuff but you learn something on VJ every day!
• animal fighting
• theft
• fraud, and
• conspiracy, attempt, or acting as an accessory to a crime if that crime involved moral turpitude.

Possession of a BB Gun does not appear to fall under any of these categories. I'm really curious about that charge because usually you only see it if a BB Gun is brought into a firearms restricted area or brandished in public and is mistaken for a real firearm. Does Australia have that restrictive firearms or simulation firearms laws?

Anyway, try the ESTA and then go for plan B if that doesn't work.

[VanessaTony 3,567]

VWP has never said no arrests, qualified.

I think the wording was something like "have you ever been arrested and/or convicted" but perhaps if that sentence ended with "with a CIMT" then I've got nothing to worry about!

Edited September 14, 2016 by VanessaTony

[Boiler 43,419]

Yeah they do. It's a category H firearm: https://en.wikipedia.org/wiki/Gun_laws_in_Australia#Firearms_categories Long and short of the incident is: an acquaintance was arrested for theft/burglary and when asked about the property he stole, he told police it was at a bunch of people's houses so they carried out searches on those houses, one of which was my brother/parents house. My brother had my dads air rifle in his room (unloaded, no ammo/pellets) and that was sufficient for a gun possession charge, but because it was so minor that's why it was only a (larger than normal) fine.

Hmm, wonder what they would think if the looked under my bed!

[Rc123rc 528]

Damn, that really is restrictive. My personal opinion is that your brother should never have been charged in the first place. What a bunch of ____ the police were. Did the father have a legal right to own a BB Gun? Doesn't matter. Done is done but remind me never to go near a firearm in Australia.

Hmm, wonder what they would think if the looked under my bed!

Probably lock you up and throw away the key.

[EM_Vandaveer 2,368]

The question on the ESTA application is:

" Have you ever been arrested or convicted for an offence or crime that resulted in serious damage to property, or serious harm to another person or government authority; or ever violated any law related to possessing, using, or distributing illegal drugs?"

I am pretty sure he can safely answer NO to that.

[SunflowerSweet 1,321]

I dunno, you may think it's restrictive to get charged for owning a BB gun but yet here in the US you can be shot dead for having one sooo