Hello,I was hoping someone more knowledgeable than me could help.I am a UK citizen and was arrested last year in Ohio for 5 counts of simple/general assault. I was offered a pre-trial diversion program, which i completed and the court dismissed my case. Also records have been sealed/expunged.My ESTA runs out soon and im worried about answering the question about being arrested/convicted, as i have been arrested and don't want to miss out on ESTA (i travel to USA monthly for work purposes). If records have been sealed and the case dismissed, can i say NO to the dreaded question during ESTA application?I have been entering the US various times since the case was dismissed with no problems at immigration, am i worrying too much?Thanks in advance for any advice offeredRichard
State/Country relating to question: Ohio
Hello. Unfortunately, you cannot qualify for an ESTA. The U.S. does not recognize foreign pardons and a sealing or expungement does not erase it from government databases, only the public would not be able to see it. So what you will need to do is apply for a B-2 tousit visa which can be found here:
I don't think you will need a waiver because the case was dismissed, but if you do need a 212(d)(3) waiver which is done on form I-192, that can be found at www.uscis.gov/forms. You can find more information here:
As I said, I do not think you will need the waiver, but you should present the U.S. Embassy with certified copies of the police report and the court disposition of your case in order to prove that it was dismissed.
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Thank you for your quick answer but i just want to clarify that i didn't receive a 'foreign' pardon, the offence and case was all done in the US.
If my offence doenst involve moral turpitude (which im told simple assault isnt) then cant i just say NO to that question? If the case was dismissed, doensnt that mean i wasnt convicted also?
Shame really, as my attourney said this wouldn't be an issue in future, guess i need a new attorney!
Thanks again, my rating will be good.
The pardon wouldn't matter anyway nor whether there as a conviction or not. They want to know about arrests and if perhaps you may have admitted to something in the police report and they just decided not to convict you. You see, ESTA is not A visa, it is generally given relatively easily if someone does not have anything in their background and it is given easily for a reason, but anything in the background that is out of the ordinary and then you need to apply for a B-2 visa. It doesn't mean that you would be denied a B-2 visa because you don't have a conviction, but it means that you won't qualify for the super-easy way anymore. What was the situation with the assault? Who was it against?
The assualt was simple/general assault, no evil intent/motive.
Im just confused that i have a letter in front of me saying:
'proceedings in the case shall be deemed henceforth not to have occurred'
Dont understand why i was told this expungment procedure would not impede ESTA authorization. Also the question on the ESTA application states 'have i been arrested for a crime involving moral turpitude'. As far as i can see on the www.state.gov website, what i was arrested for isn't defined as moral turpitude. This is the bit thats confusing me.
They probably meant that it would not impede a B-2 visa application. You have to understand that the ESTA is like the super top easy to get for people of certain countries that have low rates of illegal Immigration and for individuals that have absolutely nothing in their backgrounds, including no arrests. You have an arrest. Unfortunately, it is not that simple. It's like having backstage passes at a concert. Very few people get that. You can buy front row seats like everyone else, but backstage passes are rare. So you can easily qualify for a B-2, you just can't qualify for an ESTA anymore because of the arrest. And yes, yes, I know, crime involving moral turpitude, but you are still not understanding the situation. Let me ask another question, who was the assault against? A family member? Girlfriend? Random stranger? And why 5 counts?
I understand about the B-2 now, thank you. Just disappointed as i work in the US at short notice and applying for a visa at the embassy is gonna be difficult once my current ESTA runs out.
Was against strangers in a hotel, i was defending myself, i didnt assault 5 people, maybe one. It was 5 peoples word against mine and they won.
Not a scratch on them but i was beat up bad and required hospital attention. Feel like i was cheated really due to being foreign or different.
How come i have been allowed entry to the US 5 times since the incident?
And if i do apply for a B1 (buisness visa), do i declare the arrest on the form?
Oh well, guess i gotta deal with the cards i'm dealt. Thank you.
Well, as to why you have been allowed into the U.S. 5 times since the incident, they may not have had access to your case at that time, but their systems are getting better and better. I'm actually going to have good news for you. I went into the ESTA system and typed out a sample application so I could read the question and I looked up the Foreign Affairs Manual when it comes to assault. There is a fine line as to what constitutes assault that is a CIMT and those that are not a CIMT. So I want you to look at the link below. You don't have to let me know, but if your situation, whether convicted or dismissed (remember, the question asks, "Have you ever been arrested or convicted..."), falls into 9 FAM 40.21(a) N2.3-3, at the bottom of the 5th page, then you have to answer yes. But if it fits into (b) which is, "Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly)", then you can answer no and should be able to go forward with the ESTA. Here is the link:
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