- Can I travel to the US under the Visa Waiver Program (VWP) if I was convicted of a crime?
No. A person with a conviction is ineligible to travel under the VWP. In fact, a person who was arrested but not later charged must obtain a visa before travelling to the US.
- What is a Crime Involving Moral Turpitude?
A Crime Involving Moral Turpitude (CMT) is a crime that is inherently vile or depraved and contrary to the accepted rules of morality and the duties owed between persons or society.
- What is the process?
The visa applicant must first obtain an ACPO. The applicant must go to the Embassy, either in London or Belfast, for an interview. The official interviewing the applicant will grant the visa, deny the visa or forward the application to the Department of Homeland Security (DHS) in Washington D.C. If the visa is granted, the Embassy will return the passport with the visa issued in it within five working days. If the Embassy forwards the application to the DHS the applicant will be notified of the decision via post. If the application has been approved, the applicant will then have to forward the passport to the Embassy via a courier service. The Embassy will return the passport within fifteen days.
- What is the ACPO?
The ACPO documents a person's criminal history. It includes:
- Date of arrest;
- Offence accused of committing;
- Decision in the case; and
- Sentence imposed.
- What factors determine the approval of the application?
Several factors will determine the likelihood of success. Some of those factors are:
- Age at the time of the conviction;
- Offence committed;
- Custodial sentence;
- Time elapsed since the conviction; and
- Danger to the public or any individual person.
- How long will it take to obtain the visa?
The time it takes depends on your previous conviction(s). For minor crimes, you will know on the day of your appointment, you will know whether you have been approved for a visa. If you have been approved then your passport will be returned to you within five working days.
If your conviction was for a more serious offence (e.g. narcotics or a CMT) then your application will be transferred to the Department of Homeland Security (DHS) in Washington, D.C. The DHS may take up to three months before reaching a decision.
- What if I travel to the US under the Visa Waiver Program (VWP) and do not disclose my conviction?
Although the traveller does not have a duty to disclose any fact that has not been asked of him, the traveller has a duty to disclose the truth if asked.
If you travel to the US, you must disclose the conviction because every traveller must complete the I-94W. The first question on the form asks of a person's criminal history. A person that lies on the form commits perjury. Therefore, the person may face a criminal charge of perjury.
- Do I need a visa if my conviction has been expunged?
Yes. The Rehabilitation Offenders Act does not apply to US Immigration Law. The person must disclose this offence and obtain a visa before travelling to the US. If the person travels to the US and does not disclose the offence on the I-94W, the person has can be charged with perjury.
- What are the pitfalls?
There are two main pitfalls. The first pitfall occurs in the application itself. Most applicants do not bring with them the appropriate supporting evidence for their application. An experienced attorney will advise you about the documents you need to bring to support your application.
The second pitfall is the interview itself. Embassy officials can be harsh and abrupt. Without the proper preparation, most applicants are taken back by the interview.
- Why use an US attorney based in England rather than an attorney in the US?
Although there are numerous benefits to using a US attorney based in England, the main advantage is the ease of communication between you and the attorney. There is no time difference between you and the attorney. Also, you can meet with the attorney in person rather than communicating by emails and phone.
- Why use a lawyer instead of doing it yourself?
Successful visa applications are not just about submitting applications provided by the USCIS. Applications get approved on the supporting documents and evidence that are provided for each petition or application. Submissions that lack the appropriate documents will cause undue delay and possibly even result in denials. Appeals will not only become more expensive but result in undue delay of months. Visa denials mean that the applicant will no longer be able to travel under the Visa Waiver Scheme.
- Why use Irwin Mitchell?
Experienced lawyers at Irwin Mitchell will assist you in preparing the application and for the interview at the Embassy. As part of the service Irwin Mitchell will provide a Letter of Support that explains in detail why the application should be approved and the visa issued. The team at Irwin Mitchell will also prepare you for the interview by giving you mock interviews.
- Why use a solicitor instead of doing it yourself?
The visa application's success does not simply rest completing the application correctly. The application's success depends on submitting the proper documents in support of the application. An experienced attorney will advise you on the documents that should be submitted with the application to increase the likelihood of its success.
An application fails for two reasons: 1) incomplete application; and 2) incorrect information. Failing to submit the proper documents will result in unnecessary delay or an outright denial. Incorrect or incomplete information may result in the Embassy inferring that you were trying to deceive them. This will create great difficulties in obtaining a visa in the future.
With a few exceptions, everyone must go to the Embassy for an interview. The interview can be a daunting experience, especially if unprepared. Finally, an experienced attorney will prepare the applicant for the gruelling interview.
In most instances, a failed application will prohibit a person from travelling under the Visa Waiver Program. Therefore, it is crucial that the applicant receives the correct advice and guidance from an experienced attorney prior to the submission of the application and not after the denial.