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Background: I am a UK citizen. I was recently denied access to the US at Dublin pre-clearance. The full reason was under section 212 (a)(7)(A)(i)(I) and also INA 217.4 Because of this I am unable to enter under ESTA. Despite not agreeing with the CBP's reasoning that I wanted to live in the US, I have accepted their decision as there is no recourse to appeal. My on/off partner is an American citizen and we met in the UK 6 years ago. We have a 3yr old son together. Last year (2018) she took a job back in California and because my work as a consultant allows me to work remotely, I was spending up to 90 days at a time leaving only 30 days in between visits. It was on my return for a 3rd visit that I was declined. I understand why they thought I was trying to live there, but they weren't interested in the burden of proof that I provided showing the reasons that I had to be in the UK. As I said, my relationship with my on/off partner is just that and she does not feel comfortable getting married and nor do I.

Question:. I would like to apply for a B1/B2 multiple entry visa that would allow me to spend time with my son. I would also be able to meet with business associates and negotiate potential partnerships. I will not be looking for work in the US. In 2003 I was arrested for a DUI and unfortunately they found a tiny amount of pot in my possession. About one spliff's worth. Because it was found in my possession in the police station they had to charge me with possession. Nothing came of it and I went to court for the DUI and served an 18 month ban. In 2008 I had an altercation with a traffic warden whilst I was trying to detain him whilst waiting for the police. I was arrested for assault and criminal damage but the case never got to court. Long story short: I found him fraudulently issuing tickets, called the police.He tried getting away on his scooter and he 'fell' off. My MP got involved and the CPS didn't take it further. Now I am at the stage of applying for the B1/B2 and I'm worried that I did not declare any of these 'criminal' actions on my previous ESTA applications. I genuinely thought that if I hadn't been taken to court it didn't count as a criminal record. I had completely forgot about the pot possession- to be honest I was a bit drunk at the time- And I have never been pulled up on it by the CBP or ESTA people. Can somebody tell me what my chances are of these being serious enough to be denied a B1/B2 but more importantly will I get in trouble for not declaring on previous ESTA applications? Any help greatly appreciated. Thank you

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    With your three months on, one month off pattern I'm not surprised you've been denied. That's exactly the pattern that looks like you're trying to live in the US. For that reason alone you're unlikely to get a visa right now, and if you do get a visa at some point and try the same thing again you're likely to be denied again. – Redd Herring Mar 5 at 22:00
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    You should consult a US immigration lawyer. There's nothing simple about this case, and the consequences of them accusing you of fraud for misrepresenting your criminal record could be severe, especially since you have a child you'd like to keep seeing. – Zach Lipton Mar 6 at 0:00
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    @ZachLipton The OP's brushes with the police don't form part of his criminal record unless he's found guilty. From Wikipedia: Arrests that do not lead to an official finding of guilt, i.e. a conviction or the acceptance of a caution, are not considered part of a person's criminal record... – Redd Herring Mar 6 at 0:05
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    @ReddHerring You’re wrong. The ESTA/ DS 160 asks 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?. He should have said yes. It doesn’t matter that UK doesn’t consider it part of his criminal record. He committed misrepresentation and it was arguably material and if they catch it they are allowed to and likely to ban him, permanently. We’re under Trump, never forget that. – user 56513 Mar 6 at 1:46
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    @ReddHerring One of the questions the OP would have answered when applying for an ESTA was "Have you ever violated any law related to possessing, using, or distributing illegal drugs?" There's another question for "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?" I'm not a lawyer and very much can't answer the question of whether the OP's circumstances fulfill the legal definitions of those things, but it seems obvious the right answers very much may not be "no." – Zach Lipton Mar 6 at 1:49
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At this stage of your immigration history things become too complicated for strangers on the Internet to deal with. What you need to do is hire a US immigration lawyer, who will advise you further on how to proceed with your delicate situation. We likewise cannot predict the odds of you receiving a new B1/B2 visa on time for your November visit and this is also where an immigration lawyer would be in a better position to advise.

Submitting a shaky visa application now would be much worse than not submitting one at all. Take things slowly and don't apply for a visa until you're confident your odds are good.

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With your three months on, one month off pattern I'm not surprised you've been denied. That's exactly the pattern that looks like you're trying to live in the US. For that reason alone you're unlikely to get a visa right now, and if you do get a visa at some point and try the same thing again you're likely to be denied again.

For a new application:

  • Don't appear desperate. Wait until later in the year before applying.
  • Apply for what you need and no more.
  • Document your trip and your reasons for returning home extensively. Including return travel if possible. Take this with you when (if) you travel.
  • A shorter trip is more likely to be successful than a longer one. Consider three weeks at Christmas rather than six weeks starting in November.
  • Be aware that your US visa only allows you to show up at the border. The border guard has discretion over the length of stay and may well limit you.
  • Comply with your visa restrictions, and don't be in a hurry to return to the US - you need to establish your credibility.

For your 'criminal' record: answer the questions you're asked honestly, but don't volunteer anything else. You're likely to be asked about convictions and pending court action. Don't mention anything where no action resulted unless they specifically ask you. A DUI sixteen years ago is unlikely to be an issue.

Good luck!

  • Many thanks Redd Herring. I have to present an ACRO Police certificate so everything will be on there. – R BM Mar 5 at 23:26
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    I don’t think the OP really gets it. He’s not getting a visa even if he had a squeaky clean criminal record. You were just turned around last year for frequent visits to the USA. We’re under Trump, he’s simply not getting back into the USA for some time. Of course the $160 application fee is nothing so he can try his luck however it’s akin to playing the lottery. Even if he gets a visa he’s almost definitely will be turned around at the airport. – user 56513 Mar 6 at 1:37
  • Actually I was turned back 2 weeks ago- but I do get it. It would be much simpler if they were direct about it on the gov website instead of saying that you have to apply for a visa if you get sent back on an ESTA. The CBP had pre determined that I was not going to fly regardless of what burden of proof I provided. They saw evidence of why I had to be in the UK but they didn't think it was good enough etc. I thought that with a one on one with the Consul and a bunch of docs and letters I might change their mind. I would also travel with these documents for the CBP – R BM Mar 6 at 8:59
  • Just to be clear: I understand that being granted a Visa does not entitle you entry but at least I would travel with my burden of proof – R BM Mar 6 at 9:02

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