Further to his appearance on Specialist Sky Channel “Legal TV” US Emigration Lawyer Nilay Shastry, an American working in Birmingham has been inundated with phone calls relating to traveling to the United States.
Nilay a Solicitor and New York Attorney, with leading law firm Blakemores, heads their US Emigration Department, which is branded “Get Visas”.
Nilay believes that the British think that as they are close allies to the US that this somehow gives them special rights when passing through the US.
“There is misconception that a U.K. citizen can travel to the U.S. under the Visa Waiver Program simply because of their U.K. citizenship. A U.K. citizen can normally travel to the U.S. for up to 90 days under the visa waiver program thus enabling them to holiday and conduct limited types of business. However, upon arrival in the U.S, a person traveling under the visa waiver program will have to complete an I-94W form. The first question on this form is whether they have been arrested, charged or convicted of a crime of moral turpitude. If they answer “yes” to any of these questions there is a strong likelihood that they will be denied entry without a visa and returned back to the UK on the first available flight!”
According to Nilay, very few people are aware of this. As a result of this misconception, many people are forced to cancel their vacation and lose thousands of pounds or even worse have to face the embarrassment of telling their children at the airport that they cannot go to Disneyland because Daddy spent a night in jail after he got drunk and got into a fight.
Further according to U.S. Immigration law, a person who was simply arrested but later released without being formally charged also needs a visa! The same applies to a spent conviction. According to English law, a spent conviction treats the person as if crime was never committed. As far as U.S. Immigration law is concerned, however, there is no such thing as a spent conviction and as such it stays with you forever. Hence many people inadvertently lie on their waiver forms through ignorance of the different legal systems.
For those who are aware of the problem applying for a visa is not an easy process. One of the key concepts in assessing whether a person with a conviction will get a visa is whether the crime the person committed was a “crime involving moral turpitude”. These are crimes, which are interpreted as inherently evil, vile or wrong. In the UK this interpretation is much weaker than the US. According to Americans interpretation stealing a piece of candy or a video game as a child is the same as killing a person! Although the comparison may be silly, it is US law.
Although applying and obtaining a visa may be a cumbersome process it is not impossible. To obtain the visa a person needs to go in person for an interview at the U.S. Embassy in London or Belfast. Nilay explains:
“There are a few requirements to obtain a visa to the U.S. in ordinary circumstances. For the interview, the person must complete and submit the DS–156 and depending on the age, gender or nationality, the DS–157. The U.S. presumes that every person traveling to the U.S. desires to move to the U.S. on a permanent basis unless proven otherwise. The applicant must establish strong ties to the U.K. Additionally, the person must be able to document that they can financially afford the trip”.
The Embassy will tell you immediately if you have not been granted a visa. However, if the Embassy does grant you the visa immediately, the Embassy will retain your passport and return it within five working days with the visa issued in the passport.
“In a situation where a person has a conviction or even an arrest, the person must obtain a “Subject Access Report”. To obtain one, the person must go to their local police station and ask the police to request Scotland Yard to send the report. It can take up to forty working days to receive this. Therefore, it is important that the person requests the report well in advance of the scheduled trip to the U.S.”
Nilay believes that further non-compulsory evidence can assist with certain crimes. For instance, a person who has a conviction for drink driving should enroll in a safe driving course to support their application.
Nilay recommends in all instances travelers should plan well in advance to ensure the visa is granted and returned to the traveler before the scheduled date of travel. Even if this means confessing previous wrong doings to a loved one.
Many people believe that U.S. Immigration will not discover that they were charged and released with a caution. As a result, they will simply lie on the I-94W. This is dangerous in a shrinking electronic world! Should U.S. Immigration discover the person’s record, not only will the person be denied entry but the person can be prosecuted for attempting to violate U.S. Immigration Laws and possibly even perjury. This could result in a permanent bar to the U.S.
“At the end of the day it is better to admit to your past than have it revealed at the airport he comments”
If a person does have a criminal record, they should seek advice from an attorney that is qualified to practice U.S. Immigration Law. As well as being a qualified solicitor in England, Mr. Shastry also practiced immigration and criminal law in New York. He is still qualified to practice law in New York. As an attorney that practiced criminal and immigration law in New York City, he has represented clients in deportation or removal proceedings because of these criminal convictions.
Blakemores has set up a website at www.getvisas.co.uk and a helpline to assist people who want to travel to the U.S. but have a conviction. The helpline number is 0870 192 9000.