US Visa - arrested but no further action

maisie-jane

Hi, I’m after advice please.  I’m planning a trip to the US later this year with my partner, we’d been hoping to do this trip together for a while now, but nothing booked as yet.  Unfortunately I’ve got an absolute scumbag of an ex husband who recently reported me for harassment.  I hadn’t harassed him, but it’s just one more incident in a long line of incidents he’s orchestrated to cause me issues.  
Our local police (as all police should), took his complaint seriously and I was arrested.  This was a bit of a shock to me to say the least!  During interview they realised it wasn’t harassment at all, there was no case to answer to and the incident has been recorded ‘No Further Action’.  But the fact remains I’d been arrested.  It was an awful experience for me, no doubt my ex was delighted, he’s got away with the most awful revenge and I’ve got a dark cloud over my head. 
How will this affect me getting a Visa?  I don’t really understand the terms used on their website.  Does my arrest me I can’t have one even though I didn’t do anything? 
Thanks in advance.

bradders1983

Well for starters, you are getting mixed up between visas and ESTA (which is a visa waiver). The question you should be asking is "Can I get an ESTA or do I need a visa?", and to that I have no idea. 

tacpot12

You cannot use the Visa Waiver program, so you should not apply for an ESTA. You need to apply for a visa. 

heatherw_01

As the previous post you most likely will be unable get an ESTA (visa waiver) and you will have to apply for a visa.

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

maisie-jane

bradders1983 said:

Well for starters, you are getting mixed up between visas and ESTA (which is a visa waiver). The question you should be asking is "Can I get an ESTA or do I need a visa?", and to that I have no idea. 

I have no idea either to be honest, I’ve never been to the US before, this was something that was mentioned to me after I’d told a friend what had happened 

maisie-jane

tacpot12 said:

You cannot use the Visa Waiver program, so you should not apply for an ESTA. You need to apply for a visa. 

Thanks.  I can’t believe one mans ridiculous allegations could cause so many issues. Day trip to London on the cards for me with the sound of it. 

Nick_C

I believe you would be eligible for an ESTA. What matters is the nature of the alleged crime or offence.  They are looking for offences of "moral turpitude". 

https://www.official-esta.com/esta-resources/applying-for-an-esta-with-a-criminal-record/

"An ESTA can be obtained with a criminal record, however getting an ESTA approved will depend on the nature of the crime, the age of the offender at the time as well as the date the crime took place. No matter where the crime occurred in the world, an arrest, caution or conviction must be declared on an ESTA, where relevant, or U.S. visa application."

The questions on the ESTA application are:

"“Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?”

And

“Have you ever violated any law related to possessing, using, or distributing illegal drugs?”

It sounds to me that you can truthfully answer "no" to both these questions.

Would be interested to hear why Tacpot12 has formed a different opinion. 

heatherw_01

The official us website says different:

We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, have a criminal record,  certain serious communicable illness, have been refused admission into, or have been deported from, the United States, or have previously overstayed under the terms of the Visa Waiver Program, attempt to travel visa free under the Visa Waiver Program.

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

Edit: no idea why the website link doesn't want to load for me but a copy paste will work

Nick_C

That's the US Embassy London advice
Its wrong. They always have been out of synch with the legal position. I wonder if they are just trying to get work for themselves? No doubt they are erring on the side of caution in trying to be helpful. 

ETA I note the London Embassy are now saying this is just advice. They used to suggest it was the authoritative legal position. It isn't. 

Look at the CBP website. They are the experts. 

https://esta.cbp.dhs.gov/faq
"When must I obtain a visa to travel to the United States?

• If you intend to arrive in the United States aboard a non-signatory air carrier.
• If you intend to visit the United States for more than 90 days.
• If you believe any grounds of inadmissibility of the Immigration and Nationality Act § 212(a) apply to you, you should apply for a nonimmigrant visa before traveling to the United States.
• If you are traveling to the United States for a purpose other than short-term tourism or business."

Then look at the law:

https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1182&num=0&edition=prelim

"((2) Criminal and related grounds

(A) Conviction of certain crimes

(i) In general

Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21), 

is inadmissible."

So if OP has no reason to believe she is inadmissible, she does not need to apply for a Visa. 

And if she truthfully answers "no" to questions on the ESTA application about status and convictions, her ESTA won't be refused on these grounds. 

And of course the US authorities don't have access to your UK Police records

Nick_C

Worth noting as well that to apply for a US tourist visa in the UK, most people have to attend an interview at the Embassy in London or the Consulate in Belfast.  There is a processing fee of $160.  You can expect to spend two or three hours at the Embassy/Consulate.

An ESTA application costs $14.  You do it on line.  You usually get a decision instantly or within 48 hours.

If you can truthfully answer "no" to the two questions about criminality, the ESTA is the way to go in my opinion.

If an ESTA is declined and you have to apply for a visa, you lose $14

maisie-jane

Nick_C said:

Worth noting as well that to apply for a US tourist visa in the UK, most people have to attend an interview at the Embassy in London or the Consulate in Belfast.  There is a processing fee of $160.  You can expect to spend two or three hours at the Embassy/Consulate.

An ESTA application costs $14.  You do it on line.  You usually get a decision instantly or within 48 hours.

If you can truthfully answer "no" to the two questions about criminality, the ESTA is the way to go in my opinion.

If an ESTA is declined and you have to apply for a visa, you lose $14

Thank you.  I think the ESTA route is the one I’m going to take.  I’ve looked this up as well, it seems to indicate the same and I wasn’t charged with anything anyway.   Thank you so much for your advice.