USA visa with drug charge

Discussion in 'Passport' started by Chloe1001, May 16, 2018 at 9:13 PM.

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  1. Chloe1001

    Chloe1001 First Runs

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    I'd really like my dad to come and visit me in the USA one day but the problem is he has an old drug charge from 28 years ago, was given 12 months good behaviour and never had an issue with the law again.

    Question is should he bother applying for an ESTA if it'll get rejected? If yes Does this hurt chances of a Tourist Usa visa?
     
  2. Peanut

    Peanut Early Days

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    Not too sure, but a friend of mine wanted to get married in Vegas. Her fiance couldn’t get a US visa because he got charged with shoplifting when he was 13 or 14, with no charges for anything since.
     
  3. DbSki

    DbSki Part of the Furniture
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    It depends what state you live in

    All states and territories except Victoria have "spent convictions" legislation that requires police expunge non serious offences from your record after 10 years (or thereabouts)

    And the record is not just convictions, it is any "finding of guilt" by a court regardless of the offence or penalty.
    Labor promised to introduce spent conviction legislation in Vic while in opposition (Martin Pakula) but have failed to do so since they got Govt.

    So in Vic police retain records of any findings of guilt against a person for life.
    And abuse it of course, which is why all states legislated against it being allowed.

    https://www.gotocourt.com.au/criminal-law/vic/no-conviction/
     
  4. Jellybeans1000

    Jellybeans1000 Walking on a dream
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    Visa definitely. Try the US Embassy Consular Section, they often give people with long gone drug convictions a waiver. But if you don't get a waiver, then no.
     
  5. DbSki

    DbSki Part of the Furniture
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    28 years exceeds the commonwealth spent period

    https://www.afp.gov.au/what-we-do/services/criminal-records/spent-convictions-scheme

    Convictions covered
    The scheme applies to spent convictions where a waiting period has passed and the individual in question has not re-offended.

    The following conditions apply to convictions for a Commonwealth, Territory, State or foreign offence:

    it has been 10 years from the date of the conviction (or 5 years for juvenile offenders)
    the individual was not sentenced to imprisonment for more than 30 months
    the individual has not re-offended during the 10 year (5 years for juvenile offenders) waiting period
    a statutory or regulatory exclusion does not apply

    The scheme also covers convictions that have been set aside or pardoned under Part VIIC of the Crimes Act 1914.
    An individual whose conviction is protected does not have to disclose the conviction to any person, including a Commonwealth authority.
     
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  6. Legs Akimbo

    Legs Akimbo Grumblebum
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    Yer problem is that it is not whether the conviction is spent in Australia, it is whether the conviction means the US will not issue a visa. Australian rules do not affect US rules.
     
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  7. Jellybeans1000

    Jellybeans1000 Walking on a dream
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    Homeland will get it regardless.
     
  8. DbSki

    DbSki Part of the Furniture
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    Found this in NSW

    https://nswcourts.com.au/articles/what-is-a-spent-conviction/

    A spent conviction basically limits the disclosure of previous criminal convictions, meaning that if you have committed a crime in the past, it will no longer show up on your criminal record and you don’t have to disclose it to anyone, either within Australia, or overseas.

    It will even allow you to claim on oath that you are not charged with or convicted of an offence.

    This is good news for you, as it may no longer prejudice your chance to get a job, or travel abroad, amongst other things. Even government authorities will not longer be able to access or disclose your prior conviction for such spent offences.

    If that was true then you would not have to disclose it and the Govt would not release any information of it.
     
  9. Legs Akimbo

    Legs Akimbo Grumblebum
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    How do you know what databases Homeland Security look at? I don't.
     
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  10. Jellybeans1000

    Jellybeans1000 Walking on a dream
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    Homeland will still get it regardless. Through State, or the NSA/FBI, they don't care.
     
  11. DbSki

    DbSki Part of the Furniture
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    Don't see how that is possible outside of Victoria if the record is expunged.
     
  12. Darb

    Darb Old n' Crusty
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    Surely homeland don’t do those sorts of exhaustive background checks on Tourist visas? I know when I’ve had police clearance done for business it took weeks, and friends who have ASIO level type forensic backgrounds had months of scrutiny / digging

    Or do the yanks just have all our sovereign bits indexed and on the fly available ?
     
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  13. Jellybeans1000

    Jellybeans1000 Walking on a dream
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    Yeah, I believe they do checks. I don't think they have our files indexed, until we apply to go to the United States.
     
  14. Darb

    Darb Old n' Crusty
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    Checks that can complete in the 30seconds whilst standing at the desk upon arrival during a tourist visit?
     
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  15. oldgeezer

    oldgeezer Addicted

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    One would be surprised if Australian/State governments supplied criminal databases to the US government. Years ago they used to transmit details of passengers who had been processed onto flights heading to the US for the US authorities to cross check against their records so they would know before arrival of any persons of interest on their way, and now Advance Passenger Information (API) through the airline departure control system does the same. If your father was dishonest and just did not mention it then he might get one. He'd have to be consistent on this point all the way through, i.e. on his advanced passenger information and/or his arrival card.

    HOWEVER, if they did have some record of your father then he'd be locked out period, and that refusal would then become something which other countries might use to refuse entry as well. Not a good option.

    SO best to be honest. Being convicted of a drug offense, even if lightly sentenced, is a serious matter as per https://help.cbp.gov/app/answers/de...-with-either-a-misdemeanor-or-criminal-record which suggests do not bother with the ESTA as it would be declined. Same result.

    He might be lucky and referred to the Consulate so his best bet is to go direct to the Consulate and apply for a manual visa, being aware there is a hefty charge for these, probably around $200, maybe a surcharge for processing an application involving a waiver of a drug conviction or adding on costs they incur by way of fees charged to them by the relevant jurisdiction.

    Do it soon as chances are the clearance process will drag out no end.

    If he gets through there will no doubt be a fairly strict inspection process waiting for him on arrival at the US border.
     
  16. piolet

    piolet Found anything yet?
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    Sure they weren't telling fibs to cover a different crime record?

    That seems like a stretch
     
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  17. Donzah

    Donzah Part of the Furniture
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    This
    A conviction at 14 is uncommon - especially for shop lifting... (especially if thats your only offence)
     
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  18. DbSki

    DbSki Part of the Furniture
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    Not possible if there is no record and the Govt here says it is expunged after ten years.
     
  19. Peanut

    Peanut Early Days

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    No idea. I’m just going off what my friend told me. Her now husband does freely admit to having behaved like a dropkick in his early teens, although he did clean his act up after having to front up to court.

    It was a while ago that my friend and I had this convo, but I remember her saying that he had to go to Sydney and go through some special application process and was ultimately rejected anyway.
     
  20. Legs Akimbo

    Legs Akimbo Grumblebum
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    Having the record is one thing. Being discovered in lying about the record means instant ejection.

    It's the cover up that gets you, not the crime.
     
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  21. skull

    skull Hard Yards

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    Having had direct involvement with Crimtrac even if a conviction is spent it is on your criminal history forever.

    It doesn't get removed, it just isn't declared for the purposes of a police check
     
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  22. skull

    skull Hard Yards

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    reference my above post.

    That conviction record stays on the system forever. A person looks it up and it shows all your history with the Police, even when no conviction is recorded by the court. That is recorded in crimtrac
     
  23. skull

    skull Hard Yards

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    You would want to declare it to AGSVA for a security clearance. They'll see it and then probe you about it and if you don't come clean about it then you wont be getting that clearance or job.

    They even had access to my military conduct record when I was getting my clearance upgraded.

    They even knew about the trouble I got in with the police when I was a teenager (1990). This was 2013 when I had the upgrade.
     
  24. DbSki

    DbSki Part of the Furniture
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    Yes those are the exclusions listed at the Fed site
    But that's not foreign customs.
     
  25. DbSki

    DbSki Part of the Furniture
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    But that's ACIC and not USA customs.
     
  26. skull

    skull Hard Yards

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    I don't know what access the USA have to Australian systems. I wouldn't be surprised if they can access crimtrac, I was blown away by access some departments have without needing a warrant.

    I am just stating that the conviction when spent, does not disappear it stays there, forever.
     
  27. DbSki

    DbSki Part of the Furniture
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    Why would ACIC give access to foreign nations.
    Sounds a bit far fetched.

    Exclusions listed on the AFP site.

    Exclusions
    There are some exceptions which require you to disclose a spent or protected conviction.

    The Act includes specific exclusions for some positions of employment. The Attorney-General has also granted exclusions from the scheme for several categories of employment.

    This means that people applying for such positions must declare all convictions, or any convictions for specific offences, as required for the specific position.

    Details of exclusions should be provided to you by the employing organisation before your consent is sought to obtain a criminal history check.
     
  28. Legs Akimbo

    Legs Akimbo Grumblebum
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    Possibly on an "I'll show you mine if you show me yours" basis, understood by any 5 year old boy and girl.
     
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  29. DbSki

    DbSki Part of the Furniture
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    Yeah sounds like something a 5yo would dream up
    Or a conspiracy theorist who believes the USA is omnipresent all seeing and used HARP to suck up all Australians secret records.
     
  30. skull

    skull Hard Yards

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    Having had spent many years at the AFP and Defence there is a fair bit of information that is freely shared between nations.

    Actual access I don't know but responding to a request, easy enough.

    Continue to stick with your childish responses though. No one has actually said they have free range access to information or siphoning of classified information.

    If I remember correctly the ETSA asks if you have been arrested or convicted. So on that question alone, even if you were not convicted you should be responding with a yes. So if you decide to answer no, and somehow they identify you have been arrested then your etsa can be revoked.
     
  31. DbSki

    DbSki Part of the Furniture
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    Ok then show us which agreements for data exchange of crime records on Australians to foreign Govt agencies to allow such exchanges and Ill believe it.
    In the absence of that its fantasy at best.
     
  32. skull

    skull Hard Yards

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    Yeah like that would be available for the public to view and post online.
     
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  33. DbSki

    DbSki Part of the Furniture
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    So the Aus Govt made a secret agreement with USA to provide detailed information on Aus citizens domestic criminal records.
    Do tell more, ABC would love this story, specially with an election coming up.
     
  34. Legs Akimbo

    Legs Akimbo Grumblebum
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    I hope you never hear about something called Interpol. That will make your head explode.
     
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  35. skull

    skull Hard Yards

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    I've not said that. I have said:
    • Criminal history data is not deleted, ever.
    • There is already considerable amounts of data shared between nations, there are some MOU's available online between Immigration and US government about sharing biometric information.
    • I wouldn't be surprised if they can share more than we know (that doesn't mean I am implying they have direct access to systems either)
    • EDIT point, and the ETSA asks if you have ever been arrested or convicted. Answer that how you wish.
    You've gone on and made random claims that I have said otherwise.

    You can keep the insults and trolling to yourself.
     
  36. DbSki

    DbSki Part of the Furniture
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    Fed police say

    https://www.afp.gov.au/what-we-do/services/criminal-records/spent-convictions-scheme

    Convictions covered
    The scheme applies to spent convictions where a waiting period has passed and the individual in question has not re-offended.

    The following conditions apply to convictions for a Commonwealth, Territory, State or foreign offence:

    it has been 10 years from the date of the conviction (or 5 years for juvenile offenders)
    the individual was not sentenced to imprisonment for more than 30 months
    the individual has not re-offended during the 10 year (5 years for juvenile offenders) waiting period
    a statutory or regulatory exclusion does not apply

    The scheme also covers convictions that have been set aside or pardoned under Part VIIC of the Crimes Act 1914.
    An individual whose conviction is protected does not have to disclose the conviction to any person, including a Commonwealth authority.

    NSW got says

    https://nswcourts.com.au/articles/what-is-a-spent-conviction/

    A spent conviction basically limits the disclosure of previous criminal convictions, meaning that if you have committed a crime in the past, it will no longer show up on your criminal record and you don’t have to disclose it to anyone, either within Australia, or overseas.

    It will even allow you to claim on oath that you are not charged with or convicted of an offence.

    This is good news for you, as it may no longer prejudice your chance to get a job, or travel abroad, amongst other things. Even government authorities will not longer be able to access or disclose your prior conviction for such spent offences.
    -------------

    Which do you believe.
    Fed and State govt
    Or some spy guy on ski forum
     
  37. Darb

    Darb Old n' Crusty
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    Are we talking about simple tourist visiting the US? Where you spend 30 - 60 seconds for the guy to look at passport, ask a couple of questions and wave you through?

    I would highly doubt he's got your entire life story up on screen during that brief tourist entry to the US.

    Obviously different story if you're applying for a more extended type visa, business visa, or some other reason where merits & history are vetted.

    Last time I was in the US , i don't recall having to apply for any visa?? I just rocked up, said g'day, and went on through.
    So to the OP, you want dad to visit you? why are you needing to apply for a visa at all? (beyond a simple tourism one anyway).

    Or have they made things harder recently?
     
  38. Legs Akimbo

    Legs Akimbo Grumblebum
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    There would be alerts on the screen. All your data is sent across before the plane takes off. They have 13 hours to do the data matching.
     
  39. Darb

    Darb Old n' Crusty
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    Well I hope my unpaid parking fines in Malibu don't bite me on the ass.
     
  40. DbSki

    DbSki Part of the Furniture
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    Parking fine !

    [​IMG]

    I'm right on it Chief
     
  41. Darb

    Darb Old n' Crusty
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    You never know, it's the US afterall!
     
  42. DidSurfNowSki

    DidSurfNowSki One of them
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    I suspect it works like this:-

    The Americans would have access to the NNI (National Names Index) or similar system.
    You enter the persons details and a match is found
    You are then denied access.

    There just needs to be a match. They don't need to know the details of the match, only that there is one.
     
  43. dainsufficientrightsduck

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  44. chicski

    chicski One of Us
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    Um yeah. There’s ESTA for starters. Apply online before you go. Mandatory. Get quizzed before leaving Australia, 101 questions, even the kids (this one is relatively new). Actually entering the USA was a bit of a non event, it’s all done beforehand.
     
  45. telecrag

    telecrag Old n' Crusty
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    Pine Gap, just saying.

    Lucky my only problem with Mr Plod, was before computers, I imagine the microfiche is long gone.
     
  46. telecrag

    telecrag Old n' Crusty
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    I wonder what access we have in turn? Is it typical OZ bends over?
     
  47. telecrag

    telecrag Old n' Crusty
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    On visa advice though, I used Visalink for China, went in and talked to someone, they have all the FACTS, and got my visa no worries, with a little workaround, as at the time the Chinese were a bit weird with anyone travelling from Canberra.
     
  48. Beerman

    Beerman One of Us
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    My cousin who is a US citizen, wanted to come back to Aus to see his dying father (my Uncle). He applied for an Aus tourist Visa and was refused.
    His crime was selling weed to other school mates while at school, when he was 17. He was convicted, but i don't know what sentence/punishment was applied, it was his first and only offense. He applied for the visa 13 years after the offence when he was 30. He didn't get here.
    Obviously information gets exchanged between various countries for them to assess that persons character..............
     
  49. Richard

    Richard Maintenance Dept
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    What is of concern to me is the criminalisation of citizens for life due to minor misdemeanours during formative years that stays permanently on their record.

    9 out of 10 of us would be crims if we had got caught behaving poorly during our teens and/or early 20’s.

    Some get caught and it then becomes a shackle for life? How is that consistent with the claimed desire by the law for behaviour reform of those so charged with an offence?
     
  50. Red_switch

    Red_switch Part of the Furniture
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    The Law's a bitch, ain't it?