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I attended the US Embassy in London today for an appointment…

Customer Question
I attended the US...

I attended the US Embassy in London today for an appointment applying for B1/B2 visa.

Lawyer's Assistant: What is your official status? Do you have any pending applications or petitions with USCIS?

I was denied an ESTA. I hold an Irish passport.

Lawyer's Assistant: Have you talked to a lawyer yet?

No

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I have a criminal record. 1st conviction 1991. Burglary and theft - non dwelling. A couple of misdemeanours dealt with via caution. No time in prison. DUI in June of last year - driving ban and a fine.

Submitted: 9 months ago.Category: Immigration Law
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Answered in 5 minutes by:
9/27/2017
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago
Guillermo Senmartin
Guillermo Senmartin, Immigration Attorney
Category: Immigration Law
Satisfied Customers: 112,995
Experience: Principal Attorney at Guillermo J. Senmartin, P.A.
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Hello! My name is***** and I am a licensed attorney with more than 15 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help. Also, please do NOT click on the Opt Out button because if you do, it would prevent me from communicating with you and then it could take a long time before another expert responds to you.

Please give me a few minutes to review your question and I will be right with you with an answer. Sorry for any delay. I may have to do some research and at the same time I read and type fast, but not that fast! Thank you for your patience.

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Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago

Sorry for the delay. I just ask that if it is bad news that you not shoot the messenger. Shooting the messenger is either leaving a negative rating (usually reserved for rude or unprofessional experts) or not leaving a positive rating at all.

Did you disclose these criminal issues on your ESTA application?

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Customer reply replied 9 months ago
I was refused travel to the US under the VWT scheme.
I applied directly to the Embassy for a B1/B2 visa.
I was refused on 3 grounds - criminal record ( offense 26 years old, non custodial) and for not declaring same on ESTA application)
Also deemed to not have sufficient economic/social ties to theUK.
Even tho I reside here, am registered disabled, receive medical/social benefits and have further major surgery scheduled in the UK.
My partner is a US citizen and we we have a child who will be 2 on 10/10.
My intention was to go and look after our son for a period of up to 6 months whilst allowing my partner to resume her job.
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago

Well, that's a problem. Your ties seem to be in the U.S. having a U.S. Citizen partner that you could marry and get status through and having a minor child in the U.S. It seems that there is more pulling you to the U.S. than there is keeping you in the UK, wouldn't you agree?

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Customer reply replied 9 months ago
No.
I have major spinal surgery going on.
Why would I have it done in the US?
I could marry my partner outside of the Us also.
Customer reply replied 9 months ago
If I were to marry my partner outside of the US, could I then apply for a spousal visa with the expectation of not being refused again? Esp for the same reasons.
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago

Well, it looks like the visa officer disagreed. Also, many people try to use the B-2 to come to the U.S. because it is quick and they don't want to wait the 9 months or more that it takes for a fiancee or spouse visa. So yes, you could marry in the UK, but the point might be that they feel that your intention would be to try to circumvent the 9 month or more wait for a spouse visa. It also seems that by not disclosing your criminal record on the ESTA application, you created a permanent bar to entry into the U.S. due to fraud or misrepresentation. There may be a way around that, but the conviction for burglary concerns me. What was the maximum jail time you could have gotten for that crime? And what was the actual sentence even though the sentence might have been suspended?

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Customer reply replied 9 months ago
I don't know the maximum sentence.
I was with a group of boys and a shop window got broken (non-dwelling)
A couple of items (paintings) were removed and recovered.
I was find £400 with £600 compensation costs for the window.
Incidentally, my brother, who was present that night, and also convicted has been resident in the US for 20 years, married twice. He declared the offence on application.
I believed (wrongly) whilst applying for an ESTA that the offence was spent.
Customer reply replied 9 months ago
If 26 years is not long enough then how long will be?
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago

Ok. Well, there is no appeal to the decision. All you can do is apply again, provide certified copies of the disposition for each offense, show stronger ties to the UK (as I said, the visa officer was more convinced that you had stronger ties to the U.S. than the UK, not-withstanding the surgery), and you would need a 212(d)(3) waiver which has no form, it is just requested verbally at the visa interview and it can either be granted by the immigration officer at the interview or after just on their computer (take a look at this link):

https://fam.state.gov/searchapps/viewer?format=html&query=212(d)(3)&links=212,D,3&url=/FAM/09FAM/09FAM030503.html#M305_3_3_A

And this one:

https://fam.state.gov/fam/09FAM/09FAM030504.html

You can find more information here:

http://www.ilw.com/articles/2003,0930-labrie.shtm

This waiver is what will "forgive" the misrepresentation on the ESTA as well as the criminal issues.

My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions and there is no additional charge. Also, should you need to chat on the phone, private email or need help reviewing documentation, I am happy to do so for a small additional cost. Let me know if you are interested in these – I am happy to give you more details! If you have no further questions (at this time) please leave a positive rating for my service. I would sincerely ***** ***** You can do that by clicking on the 3rd, 4th or 5th stars or smiley faces if you see them. If you do not see any stars or smiley faces, you may have to scroll up to the top of the page or click on my name and they should come out. Also, your session does NOT close when leaving a positive rating, so you can continue to ask additional questions without additional charge. Thank you for your understanding.

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Customer reply replied 9 months ago
My partner Allison and myself have no intention of residing permanently in the US.
We travel extensively in SE Asia and Europe.
It is because of our child's age that Allison is remaining there at present.
However, because of family members our ties to the US will remain strong.
I, myself have a brother who has lived there for 20 years, and yet I have visited only 5 times in 25 years.
I overstayed once by 2 days. On my last visit. I declared this fact at my interview.
Surely I cannot be thought of as someone who would abscond once in the country?
Also, as well as being denied the opportunity to assist with my son's welfare at this time am I to be considered permanently persona non grata?
Immigration Lawyer: Guillermo Senmartin, Immigration Attorney replied 9 months ago

I cannot attest to what the visa officer reviewing your file will think. I can tell you that from first glance, the only tie to the UK that you have presented at least to me is that you have a serious surgery coming up. All your other significant ties seem to be in the U.S. You are going to need more to overbalance that, like showing you have an excellent job in the UK for a long time with a high salary that you won't easily abandon and would not easily be able to find in the U.S. The brief overstay is a negative factor against you, but it is minimal since it was only 2 days and it hopefully happened awhile ago. The longer ago it happened, the better it is. The same thing with the criminal background. All of that counts against you, but the longer ago it happened, the better it is. The longer you have been a good upstanding citizen of the UK, the better it is. And finally, the misrepresentation on the ESTA is not good, but perhaps they will believe your explanation as to why you made it. You have to understand that you have a lot of negative factors against you. Granted, a few of them are not that serious and happened awhile ago, but they are still negative factors. When you bunch them all up, it really doesn't look good. It's not an impossible situation, but you need to look at it objectively and not get offended, especially at me. I know how these things go and people often want to shoot the messenger. I am only the messenger. I am not passing judgment, I am just starting the facts as you have given them to me. The multiple negative factors, even minor ones, add up and they don't help much. You need to show stronger ties outside of the U.S. and more positive factors to outweigh the negative.

Let me know if you need anything else, but please do not forget to rate me positively. You can do that by clicking on the 3rd, 4th or 5th stars if you see them, or the smiley faces if you see them. If you do not see the stars or smiley faces, please scroll to the top of the page to see them or click on my name and they should come out. Also, we do NOT finish just because it says "Rate to Finish" or something like that. Your question does NOT close and you can continue to ask questions without additional charge on the same question thread even after you leave a positive rating. Thank you for your understanding!

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