Can you travel to the USA if you have a criminal record?

Non-US nationals looking to enter the US are assessed by US authorities against general grounds for admission – including whether they are of good moral character. If you have ever been arrested or have a criminal conviction, it is not necessarily the case that you are automatically barred from entering the US. But you should expect any US immigration application to be more complex and will take longer to process.

US immigration law in this area is not straightfoward and applications are subject to considerable discretion on the part of visa adjudicators and border officials. In any event, should you have any form of past conviction, however minor, however long ago and from wherever in the world – take professional advice on your circumstances.

Can you travel visa-free with a criminal record?

The Visa Waiver Program (VWP) allows citizens of participating countries to travel to the United States without a visa, to stay for up to 90 days for tourism, business or transit.

To qualify for the VWP, travellers must first obtain authorization to travel to the US under the Electronic System for Travel Authorization (ESTA).

The ESTA online application form includes a section with several eligibility questions. These questions are used to determine whether you can travel visa-free by asking travellers to declare pertinent information such as medical conditions, past immigration law breaches and criminal activities – for example:

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

Answering ‘yes’ to any of the ESTA eligibility questions will see your application refused.

There are however a lot of grey areas to consider.

Generally – if you have ever been arrested, even if the arrest did not result in a criminal conviction, or if you have a criminal record, you will not be eligible for ESTA. However, if for example, you have a minor traffic offence that did not result in an arrest and/or conviction, you may still be ESTA eligible provided you are otherwise qualified.

If your circumstances are more complex, it is best to take advice prior to making any US application. For example, if the offence occurred in the United States, and there is an outstanding fine against you, or you did not attend your court hearing, it is possible there may be a warrant out for your arrest, you can expect complications when applying for admission into the United States.

Entering the USA with a criminal record: Am I eligible for a visa?

If your ESTA application for visa-free travel has been refused or if you are advised not to apply for ESTA, you should consider your visa options and how to declare any arrests or convictions.

Even where you satisfy the criteria for any given category of visa to travel to the United States, for example, a visitor visa to go on vacation, you may still be denied permission to travel to the US where you have been convicted of a criminal offence.

Your application will be denied if you fall within the scope of one of the inadmissibility grounds as set out under U.S. law. In particular, your current and/or past actions, such as drug or criminal activities may make you ineligible for a visa. Examples of visa ineligibilities, in the context of criminality, and as provided for under the Immigration and Nationality Act (INA), include the following:

• You have been convicted of a crime involving moral turpitude – INA section 212(a)(2)(A)(i)(I). The meaning of moral turpitude is discussed in more detail below.
• You have been convicted of a drug violation – INA section 212(a)(2)(A)(i)(II).
• You have two or more criminal convictions for which the total sentence of confinement was five years or more – INA section 212(a)(2)(B).

All US visa applications ask for details of any criminal records to be declared. Regardless of when a conviction occurred, you must disclose all such matters fully, as even spent convictions can have a bearing on your eligibility for admission into the U.S.

Applications are further complicated as criminal rules differ between countries and jurisdictions. For example, in the UK, some convictions are treated as ‘spent’ under the Rehabilitation of Offenders Act, but the same rules do not apply under US law. As such, taking advice will ensure you are presenting your case under the correct position to US immigration authorities and avoiding any issues, misunderstandings or accusations of misrepresentation.

If you have a criminal record, you should look instead at applying for the relevant visa and also submit an accompanying criminal waiver of inadmissibility, declaring all details of your criminal record. Applying for and being granted a waiver of ineligibility can delay administrative processing of a visa application by several months.

With few exceptions, whether entering by sea, air, or land, those who hold a criminal record will not be allowed to enter the United States without a waiver of ineligibility. The U.S. Department of Homeland Security has restricted access for all foreign nationals with criminal convictions, especially those that fall under the category of crimes involving moral turpitude.

Does the type of crime make a difference to eligibility?

Whether or not a criminal conviction will impact your eligibility to travel to the US will depend in large part on the nature of the criminal activity on your record.

In most cases, you will be denied a waiver where you have been convicted of a very serious offence. These are commonly referred to as crimes involving moral turpitude, (CIMTs), such as rape, kidnap, manslaughter, murder or forgery.

Although CIMT has no statutory definition, the courts have held that moral turpitude refers generally to “conduct that shocks the public conscience as being inherently base, vile, or depraved, contrary to the rules of morality and the duties owed between man and man, either one’s fellow man or society in general.”

Do you have a question about entering the USA with a criminal record?

Attempting to receive a visa or enter the US by wilfully representing a material fact or committing a fraud, for example, by trying to conceal any criminal record or otherwise, will be treated very seriously by the authorities, impacting your future US immigration applications.

If you have any type of arrest or conviction, it will impact your options. Factors such as the nature of the offense(s) and punishment and when the offense(s) occurred will need to be considered as well as the wider circumstances and context of your case.

Importantly, even where you are granted a visa and a waiver of inadmissibility, entry into the US will not be guaranteed. You remain subject to the discretion of US immigration officials at the border, as such it will be important to travel with documents that confirm your status and evidence your eligibility.

NNU Immigration specialize in advising travellers on their options to travel where they have a criminal record. For advice on how this complex web of rules applies to your circumstances and ability to travel, speak to our London-based US immigration attorneys.

This article does not constitute direct legal advice and is for informational purposes only.