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Guillermo Senmartin
Guillermo Senmartin, Attorney At Law
Category: US Law
Satisfied Customers: 111999
Experience:  Over 12+ years of experience in various areas of U.S. Law and 15+ years of experience in U.S. Immigration Law..
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I'm UK born and bred, work US company. I

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Dear sir,
I'm UK born and bred, work for a US company. I have to travel twice yearly to the US for business and often tag on a bit of holiday. Always travelled on the VWP and have been every year for last 4 years. I was arrested for being in the wrong place at the wrong time about 7 years ago, mistaken identity. Once the police looked into it it was all disposed of with no further action. I've never had a run in with the police before or after. The question on the VWP ESTA asked previously ab
Hello! Thank you for requesting me. I am a licensed attorney with more than 13 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. What was the arrest for?
Customer: replied 2 years ago.
It was for 'pitch encroachment' I was at a soccer match stood near the front of a fans area, a goal was scored and people behind me pushed to the front sending me forward. An aggressive stadium worker started grabbing people, inc me. I was handed over to the police and it was just made up to say I had been beyond the authorised area. It was a lie from start to finish. I was only arrested as the police could only investigate later. I was arrested but released. Some week after the it was realised there was no evidence and it was dropped. I guess it's a form of trespass?
Sounds to me like a regulatory offense. Correct me if I am wrong, but I believe the question on the ESTA application is if you have ever been arrested for a crime involving moral turpitude?
Customer: replied 2 years ago.
Can I just ask did you get my FULL question? in my q above it cuts off after about 200 words
I did not. Please repost the bottom part. It cut off at, "The question on the VWP ESTA asked previously ab..."
Customer: replied 2 years ago.
That's what I thought here goes, you need the full pictureI'm UK born and bred, work for a US company. I have to travel twice yearly to the US for business and often tag on a bit of holiday. Always travelled on the VWP and have been every year for last 4 years. I was arrested for being in the wrong place at the wrong time about 7 years ago, mistaken identity. Once the police looked into it it was all disposed of with no further action. I've never had a run in with the police before or after. The question on the VWP ESTA asked previously about 'crimes of moral turpitude' and more recently it has changed to crimes related to serious harm and damage etc. Well what I was arrested for is the equivalent of accidental trespass, a load of nonsense. I could travel to the US by answering the question on ESTA 'truthfully' tick no happy that this was never ever a CIMT. Other than that arrest I have no convictions or anything like it all.
Here's the problem, due to work I now need to apply for a B1 VISA. My paperwork is all in order, letters from
employer, ACRO certificate clear etc I know the embassy online ask about ALL arrests, is this guidance or law as it conflicts with ESTA . I'm not a liar so will again answer yes on the D160, expected to be asked about it which I'm more than happy. I did nothing wrong, have no convictions.As the embassy I realised expects everyone to declare all arrests which contradicts ESTA what do you think they will make of the fact I've been to the US on the VWP as above? I'm adamant I've been truthful but it's the embassy dishing out the visas and I'm worried they won't like this.Please can I have any advice and comments. If the rest of my application is all good should I be ok?Sorry I should have said also I now need a B1 visa due to the recent changes to the VWP in 'dual nationality', I have a parent born in one of the countries and under their law I have dual nationality. The new rules require unlucky people like me who despite being UK born and bred and having never set foot in one of those countries need to apply for a VISA. If it wasn't for this I would, as always use the VWP. The fact that I now need a VISA means I will be asked on the D-160 about arrests and hence my concern (as I've just recently found out) that as the embassy points on its website out 'any arrest no matter if it didn't result in a conviction' they will have a problem with the fact I used the VWP previously. In my eyes I answered the ESTA question correctly and truthfully but the embassy could think should have come to them first. It's so ambiguous but it's the embassy that gives visas not cbp and the state dept who ask the ESTA question.I will be honest on the form and at the interview but fear it will be held against me by the consular officer.Any further thoughts/advice now you have more detail?
Ok. Now that I have read your entire post, I have a question. When you initially applied for the ESTA, it most likely only took into consideration CIMT, correct? Meaning that at that time, your response was "NO" because it was not a CIMT, correct? Were you ever asked at a later time upon entry questions about arrests that were not just CIMTs? And if so, what was your response?
Customer: replied 2 years ago.
You are correct I ticked no to the ESTA question that includes the term CIMT for the reasons above. Both in 2012 on my first ESTA and then in 2014 for my ESTA renewal. During my 3 visits to the US since my arrest in 2010 I have never been asked any questions by a border official related to this topic.
Then you should be fine. I don't see that you have done anything wrong with the ESTA and your entries. You should be fine. When you apply for the B visa, you should provide a certified copy of the police report and disposition of the case to prove how the case closed. I don't foresee having any issues in that regard. I have to log off for a bit, but I will be back later if you have any follow-ups. 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! When we are done, if you would be so kind as to leave a positive rating for my service, I would sincerely ***** ***** 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. You can even ask additional questions without additional charge even after leaving a positive rating. Thank you for your understanding.
Customer: replied 2 years ago.
Thank you. So just to clarify, facts as they are you don't believe that my previous visits to the US will be held against me;1) the arrest I described to you is NOT CIMT2) The embassy will not hold my previous visits against my application for the reason above?One other question, so why does ESTA distinguish between crimes of MT and yet the embassy says anyone arrested (even if it didn't result in a conviction) say to come for a VISA.Please can you confirm I was correct to use ESTA?
Customer: replied 2 years ago.
To add I don't want to be accused unfairly of misrep, but I understand from your advice this won't be the case as no arrest for CIMT. Am I right?
Correct. I do not believe that will be the case as you did not misrepresent. As to the differences between the ESTA and the visas, remember that the ESTA is only for persons from certain countries that have a low instance of illegal immigration/overstays. So the U.S. wasn't too concerned about persons from those countries overstaying so they wouldn't delve too much into their backgrounds unless they had CIMTs. Visas are available to everyone and usually undergo more scrutiny. 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. Thank you!
Customer: replied 2 years ago.
Thank you sir, I appreciate your help on this.So may I ask you in summary of in light of everything I've told you if there is any reason I won't get my VISA despite my previous trips? I've told you everything that applies, I'm trying to reassure myself that the embassy, based on their conflicting online advice, will not deny based on 'oh well you had an arrest so even though definitely not CIMT' you have made yourself inadmissible as you were ineligible for the VWP' (which is what it seems to indicate online'. Can I rule this out?If you can just kindly answer and clarify this as a summary I will end the conversation here, I'm very happy so far and will be rating highly.
Those previous trips in fact help you in the sense that they show that you have used your visa responsibly and have never abused it, always leaving on time. As far as assuring yourself that you will not be denied, unfortunately there is no way to do that. No one is ever guaranteed a visa, but as long as you did not misrepresent anything when you applied for your ESTA or in any of your entries, I don't see why they should deny you a B-1/B-2. Let me know if you need anything else, but please do not forget to rate me positively. As I do not receive a salary, it is the only way that I get credit for my service to you. You are NOT charged again and we do NOT finish just because it says, "Rate to finish" or something like that. I will not abandon you after you rate me positively if you have additional questions. 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. Thank you for your understanding!
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Customer: replied 2 years ago.
Thank you again, I've provided a rating and I appreciate your help.One after thought I have would the embassy feel it's not the moral turpitude question but more I was never eligible to use it at all, as they deem 'any arrests' to need a full visa application.Thank you for highlighting I have demonstrated going to the US and leaving on time correctly, do you honestly think that's how they will see it?These are my last questions I promise!
No problem. But never say "last question" and even worse, that you promise. It is my experience that this really depends on the answer given. So let's see.... The answer is that it depends on the questions asked when you filled out the paperwork to enter the U.S. If they specified CIMT, then you are ok. If they later changed that form you fill out in the airplane to read ANY arrest and you answered NO, then you may have a problem. If it becomes a problem, you still have the 212(d)(3) waiver to fall back on. Thank you for the positive rating. If you would like to request me in the future, please remember to put FOR GUILLERMO in the subject line and message box. Good luck to you!
Customer: replied 2 years ago.
Ok I'm just conscious there is a limit to how much time you can give for what I paid. Just trying to be fair.The example you give though is a little unrealistic give that the ESTA questions are exactly that and the blanket approach of the embassy what it is. At no point have I lied nor attempted to spin the truth.For me it's about perception which is what in trying to get to the bottom of. If it is in fact 'law' that ANY arrest means one is ineligible for the VWP then I have problem?If it's just more that's how they prefer to deal with applicants who may be unsure based on their record (ie they would rather take a closer look at a person who say has 12 arrests for theft but no convictions) then it would seem you are suggesting I will be ok.How will a consular officer know what random questions I was asked at the border on each of my 3 visits anyway?I guess the single most issue is if the embassy deem I was ineligible to use VWP in the first place, not because of CIMT but just because I was arrested. Do you see what I'm trying to get at?! Sorry I do appreciate this.
An officer will not normally know what questions were asked of you unless the officer that asked those questions wrote down some information in your computer file so that it pops up. But I repeat, as long as you did not misrepresent any forms that you filled out, they should not deny you a B1/B2 for that previous arrest. If the officer pops up with something in the record that shows that you may have misrepresented, then you may need a 212(d)(3) waiver. Regardless, you need the B1/B2 for work so you will need to apply. I know you want to be as prepares as you can be, but there is a limit to how much you can be prepared. It's either nothing will pop up and you will get the visa, or something will pop up and you may need to apply for the 212(d)(3) waiver. So if you want to prepare, go with the idea that you will need the waiver and have evidence to explain why you deserve the waiver. Please review the links that I provided you in regards ***** ***** waiver. The only other thing you can do is file a Freedom Of Information Act (FOIA) request to get copies of your immigration file. Here are some links: Good luck!
Customer: replied 2 years ago.
There's no need for the FOIA as I can clearly recall conversations with the CBP officers on each occasions. Had they asked any specific questions related to this I would have answered truthfully. They didn't it was just about purpose of travel, how long I'm in the US for etc standard stuff etcWhy would the embassy say all arrests make one ineligible for the VWP to then not apply that to anyone who has used it despite believing they were fine to do so.Sorry this is the final bit that doesn't make sense.For example it's like the question being 'do you follow the Boston red sox' I tick yes because I do but then they say 'but hang on did you see on our website you can only use this scheme if you have blond hair'. It's both circumstantial and subjective.
Customer: replied 2 years ago.
And hence a reason to deny me a visa under suggestions I ignored the rules
Well, I was talking more about the forms you would fill out in the airplane. And as to your question, "Why would the embassy say all arrests make one ineligible for the VWP to then not apply that to anyone who has used it despite believing they were fine to do so." Remember that I explained that ESTA is not available to all countries but only to a select few. And over time, policies change. So what may not have made someone ineligible for ESTA before, that same thing now may make someone ineligible for ESTA. I always err on the side of caution. I always tell people that any arrests makes a person ineligible for ESTA because ESTA is supposed to be for people that have NO ISSUES AT ALL in their background. That may not be totally accurate and every now and then I get a customer that argues with me about it because they just simply don't want to be ineligible so I tell them, "Fine, no problem, go make the argument with the immigration officer. Believe me, they won't be as nice as I am. I am on your side, they are not, but go for it!" Just apply for the B1/B2, be honest, have certified copies of the police report and court disposition and be ready for a 212(d)(3) waiver. I honestly think you are over-worrying and won't need it, but if you want to prepare, that's what you would do.
Customer: replied 2 years ago.
Thank you, ***** ***** there are no guarantees and I will have a compelling case due to my company. I know what docs I need re invite, travel plans etc it would be awful to be denied on the basis of some tiny technicality. Do you believe I was right to use the ESTA programme, you seem to have a similar and understandable logic to the embassy in that any doubts go for a VISA but it doesn't mean that (with a minor non CIMT arrest like mine) I wouldn't have been able to use it? Is this what you mean? If so you've answered my question as I guess in trying to get a view on the logic they will apply, discretion and objectivity etc as that will make me fine as the rest of my case will point to nothing else than a zero risk business visitor, which is what I am.On the flip aid they 'stick to their guns' I still feel they may think I've flown in the face of their guidelines?Thank you. We are almost there I think
I think you were fine to use the ESTA. The argument you make at the U.S. Embassy IF it comes up, is that it was not a CIMT and you stick with that argument.
Customer: replied 2 years ago.
Also why would you tell people arrests make someone ineligible for ESTA as its for people with zero issues in their background and then suggest I was ok to use it? This is precisely what I fear may be the embassy's view....forgive me.
Customer: replied 2 years ago.
Thank you for putting my mind at rest. All the best to you.
As I said before, I err on the side of caution. So I would rather tell someone to apply for a B-2 directly if they have an arrest for anything. I didn't used to do that since they used to specify CIMT, but now they are getting stricter and I think they just need to update the websites, policies and forms until everyone is on the same page with the same information. It takes time as it is the government bureaucracy that we are talking about. Anyway, you are very welcome. If you need me again, when you post a new question thread, put FOR GUILLERMO. Thank you and good luck!
Customer: replied 2 years ago.
Thank you, ***** *****'ve been for the interview, should it raise further issues I may raise a new question. Thank you for being so patient, helpful and courteous.
No problem. Good luck.