ESTA CIMT non-declaration and future impacts

[mitch48 4]

Hi,

I am currently in the US for the second time in two years visiting my girlfriend (USC), who I want to eventually marry.

I originally ticked "no" to the ESTA question about CIMTs. I have a caution for petty shoplifting from 2005 (I was over 18). At the time I didn't think it counted as a CIMT, and also the circumstances around it were so ridiculous that I refused to let it become more of a burden than it already has been. I obviously wasn't expecting to fall in love and be in the situation I'm now in.

I'm obviously concerned that when I come to apply for visas and do the necessary police checks, this disparity will need explaining and show up as misrepresentation on my ESTA.

I have poured through forums looking for evidence of outcomes for people in similar situations, to no avail. I see lots of speculation but people rarely (if ever) seem to return to post the outcome of their situation.

So I would be grateful if anyone could point me in the direction of some case studies, or provide any useful information which isn't based on shame/blame.

Many thanks.

[Harpa Timsah 13,258]

I am not sure what the penalty is for using the VWP when you are not ineligible. It can be material misrepresentation in certain circumstances.

The most important piece of advice I have is that you do not try to marry now and adjust status, but rather follow the K-1 process to a "T". You are not allowed to be here right now, and trying to use this entry to become an immigrant (or any VWP entry) would end in disaster. I know you didn't suggest you were doing this, but just in case someone offers that advice, don't take it!

But for you to go back and follow K-1 normally, I am not sure what the penalty would be.

I do seem to recall that someone needed a waiver, I am not sure if it was for illegal entry or what.

[Inky 1,110]

Moved from K-1 process to the regional UK as this is not a K-1 process question but a question about ESTA and record issues in the UK. UK specific answers are more likely to be found here.

[mitch48 4]

The most important piece of advice I have is that you do not try to marry now and adjust status, but rather follow the K-1 process to a "T". You are not allowed to be here right now, and trying to use this entry to become an immigrant (or any VWP entry) would end in disaster. I know you didn't suggest you were doing this, but just in case someone offers that advice, don't take it!

Thanks for your advice. I had already decided I couldn't take the risk of marriage, without knowing whether I could actually follow through properly. Its a terrible feeling to not know at this stage whether I can actually marry her or not (her family circumstances mean we would have to live in the US, so living in UK isn't really an option).

Thanks again.

[Justine+David 218]

Member JustJ went through something similar with her husband who didn't fill out the VWP form correctly. He's Irish, but the waiver went through the UK consulte. They had a long uphill battle, but they had a very good lawyer on the second appeal and he's living in the USA now. I suggest you write a PM to her and best of luck.

[QueenOfBlades 224]

What do you mean CIMT?

The only question I can see on the ESTA site is this;

B) 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?

I assume you were arrested for your caution? Also "moral turpitude" is a generalization. I don't think it sounds like misrepresentation, I think you didn't view your caution as a huge thing given the question is aimed mainly at drug traffickers, serious crime or crime which would indicate you have bad character.

[Harpa Timsah 13,258]

I assume you were arrested for your caution? Also "moral turpitude" is a generalization. I don't think it sounds like misrepresentation, I think you didn't view your caution as a huge thing given the question is aimed mainly at drug traffickers, serious crime or crime which would indicate you have bad character.

No, it is not aimed at drug traffickers only...

[mitch48 4]

What do you mean CIMT?

Crime involving moral turpitude.

Also "moral turpitude" is a generalization. I don't think it sounds like misrepresentation, I think you didn't view your caution as a huge thing given the question is aimed mainly at drug traffickers, serious crime or crime which would indicate you have bad character.

Actually none of that is true. I respect you trying to help, but I feel that in situations like this, unless you really know what you're talking about, then your advice is of little value and may actually offer false comfort - which can make matters worse.

Thanks anyway.

[Justine+David 218]

What do you mean CIMT?

The only question I can see on the ESTA site is this;

B) 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?

I assume you were arrested for your caution? Also "moral turpitude" is a generalization. I don't think it sounds like misrepresentation, I think you didn't view your caution as a huge thing given the question is aimed mainly at drug traffickers, serious crime or crime which would indicate you have bad character.

This is incorrect information. As others have said, please do not offer advice on such serious subjects as these. While those reading have the responsibility to look into issues themselves, following your erroneous advice could lead to a lifetime ban from the US. You also need to be responsible and not offer conjecture on such a serious subject.

[VanessaTony 3,567]

I originally ticked "no" to the ESTA question about CIMTs. I have a caution for petty shoplifting from 2005 (I was over 18). At the time I didn't think it counted as a CIMT, and also the circumstances around it were so ridiculous that I refused to let it become more of a burden than it already has been. I obviously wasn't expecting to fall in love and be in the situation I'm now in.

I'm obviously concerned that when I come to apply for visas and do the necessary police checks, this disparity will need explaining and show up as misrepresentation on my ESTA.

Okay I'm a little confused about "caution". When you say caution what actually happened? Did you get arrested? Did you get given any official paperwork on the matter?

This thread here: http://britishexpats.com/forum/showthread.php?t=258413 says that cautions won't show on your "PNC check" (post #3) but post #8 says it depends on what type of caution you received.

I would suggest getting a police check done and seeing what that says first and foremost. If it shows up on your record I suggest you then ask for your arrest record for the incident. Once you know for SURE whether it comes up in your police check, you'll know exactly where you stand.

[mitch48 4]

I would suggest getting a police check done and seeing what that says first and foremost. If it shows up on your record I suggest you then ask for your arrest record for the incident. Once you know for SURE whether it comes up in your police check, you'll know exactly where you stand.

I was arrested, I know I was cautioned but don't recall getting any paperwork. It showed up on an enhanced CRB check 2-3 years later. I agree that getting the ACPO certificate would shed some light on it - if I'm lucky enough to get "no trace" then I think erasing the incident entirely from my memory might be the best option, regardless of the various pressures to be "honest". If I get "no live trace" then I will have to disclose it and risk getting the "misrep" against me.

Another question for anyone who may know about such things - if an ACPO says "no trace" then is there any other check that could be made behind the scenes to reveal something like a caution?

Also - does anyone know of anyone who has had a misrep for a caution and NOT had it work against them? I read up on JustJ's situation and her husband was tagged with a misrep as well as (unfairly) an overstay, the both of which together caused issues. I'm wondering if the misrep alone (and if explained as a mistake/misunderstanding at interview, therefore not willful misrepresentation) is enough to get denial of a K1 visa.

Thanks for your help so far everyone.

[JTLDN 0]

I was arrested, I know I was cautioned but don't recall getting any paperwork. It showed up on an enhanced CRB check 2-3 years later. I agree that getting the ACPO certificate would shed some light on it - if I'm lucky enough to get "no trace" then I think erasing the incident entirely from my memory might be the best option, regardless of the various pressures to be "honest". If I get "no live trace" then I will have to disclose it and risk getting the "misrep" against me.

Another question for anyone who may know about such things - if an ACPO says "no trace" then is there any other check that could be made behind the scenes to reveal something like a caution?

Also - does anyone know of anyone who has had a misrep for a caution and NOT had it work against them? I read up on JustJ's situation and her husband was tagged with a misrep as well as (unfairly) an overstay, the both of which together caused issues. I'm wondering if the misrep alone (and if explained as a mistake/misunderstanding at interview, therefore not willful misrepresentation) is enough to get denial of a K1 visa.

Thanks for your help so far everyone.

I too wonder if people with a CMT + misrep... ever have happy endings.

I sure hope so

[JustJ 0]

I too wonder if people with a CMT + misrep... ever have happy endings.

I sure hope so

Indeed they do, JTLDN, although it does come with a hefty price. After nearly four years of fighting our battle, my husband is here with me. We both lost a lot through this process and are only now picking ourselves up, dusting ourselves off, and forging onward in our new lives.

I PMd the OP, although I'm not sure how much help it will be. I know others have been successful in overcoming this on their own, but I would wholeheartedly recommend contacting an attorney experienced in handling these matters.

[JTLDN 0]

Indeed they do, JTLDN, although it does come with a hefty price. After nearly four years of fighting our battle, my husband is here with me. We both lost a lot through this process and are only now picking ourselves up, dusting ourselves off, and forging onward in our new lives.

I PMd the OP, although I'm not sure how much help it will be. I know others have been successful in overcoming this on their own, but I would wholeheartedly recommend contacting an attorney experienced in handling these matters.

wow a 4 year battle, I too would appreciate more information on how you overcame and won.

I cannot begin to fathom the expenses involved, love triumphs all

Congrats!

[mindthegap 2,573]

Okay I'm a little confused about "caution". When you say caution what actually happened? Did you get arrested? Did you get given any official paperwork on the matter?

This thread here: http://britishexpats.com/forum/showthread.php?t=258413 says that cautions won't show on your "PNC check" (post #3) but post #8 says it depends on what type of caution you received.

I would suggest getting a police check done and seeing what that says first and foremost. If it shows up on your record I suggest you then ask for your arrest record for the incident. Once you know for SURE whether it comes up in your police check, you'll know exactly where you stand.

A caution does not exist in the us, but does in the uk- basically a formal warning designed for first/lesser offences to avoid court. It requires an admittance of the offence, is recorded as a criminal record but is NOT a conviction, but WILL show up on the uk ACRO police certificate.

I have one single caution from 13yrs ago- it showed as no live trace on my police certificate issued in september 2012, so expect it to show up. Even if it didnt, lying and concealing it would be inadvisable and could have really serious consequences in the future if it were ever to come to light. The London embassy is used to the concept of cautions and dealing with them with regards to visas.

In my case, it was not a crime classed as moral turpitude,and was a minor offemce (the same offence is classed as a misdemeanor in the US) so no extra hassle or delays.

Also apply to the force involved for a Subject Access Report- the cost of this is £10 and it will detail everything, right down to the serial number of your dna sample and fingerprints.

What is the exact offence you were arrested/cautioned for?

If the max sentence for that offence is 1 year or less, and that was your only indiscretion with the law, you should be fine as you are not classed as inadmissable (INA 212 exceptions to part (2)) and you would not require a waiver on criminal grounds.

I believe a summary conviction for theft carries a max sentence of 6 months, so you may in fact, be in the clear and be worrying over nothing.

I am not a lawyer- i just looked into this in great detail when i first went to the US and was thankful that i never needed to obtain a visa and could travel legally under the VWP despite my arrest and caution. Had i blindly followed the embassy advice (as many do) with regards to arrests etc instead of looking at actual legal bumph, it would have been an unnecessary hassle.

As always, the devil is in the detail.

Edited February 21, 2013 by mindthegap