Non-US nationals looking to travel to the USA are assessed by immigration authorities against general grounds for admission – including whether they are of good moral character. This involves carrying out background checks to identify any criminal history or record.

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. If you have ever been arrested or have a criminal conviction, you should also expect any US immigration application to be more complex and to take longer to process.

US immigration law in this area is not straightforward and immigration applications are subject to considerable discretion on the part of visa adjudicators, while US border officials also have powers to conduct background checks and refuse entry if they identify just cause.

In this guide, we set out the rules on entering the US with a criminal record, including whether you can apply for ESTA, a visa, or a waiver of admissibility to obtain permission to travel.

Ultimately, should you have any form of criminal history – however minor, however long ago and from wherever in the world – take professional advice on your circumstances to ensure you secure the required permission and avoid issues at the border.

 

Can you get ESTA 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, travelers 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 travelers 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, requiring careful consideration of the rules and how these apply to individual’s specific circumstances.

Generally, if you have ever been arrested, anywhere in the world and however long ago, even if the arrest did not result in a criminal conviction, or if you have a criminal record, you would not usually 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 eligible.

If the offense 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.

If you have a criminal record, or if you were involved in anything that resulted in a caution or arrest, your circumstances become more complex, and it is best to take advice prior to making any US application, whether for ESTA or a visa.

Importantly, not being eligible for ESTA does not mean you cannot travel to the US – you can instead apply for a visa and/or a waiver of admissibility.

 

US visa with a criminal record?

 

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 offense. Your application will be denied if you fall within the scope of one of the inadmissibility grounds as set out under US 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).

 

The US 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.

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 US.

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. However, you should take into account that applying for a waiver of ineligibility can delay administrative processing of a visa application by several months. Waivers also require careful preparation, to ensure adequate supporting documentation is provided to support your case for eligibility.

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.

 

 

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 what is deemed a 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.”

 

Full and honest disclosure

 

US immigration applicants have provide full disclosure of their criminal history when making an application to enter the US. If you are caught lying to the authorities, you could be banned from entering the US permanently, and this dishonesty will be noted in your immigration records. Future visa applications will also be scrutinized more closely, making it significantly harder to gain entry into the US.

 

Lying on the ESTA form about a criminal record

Lying on the ESTA form is a serious offense. If you provide false information about your criminal record, you risk being caught during background checks and at the US border. US Customs and Border Protection (CBP) has access to international databases and extensive screening tools that can reveal inconsistencies. If caught, you will be refused entry, and future travel to the US could be permanently barred.

 

Will I be caught at the US border if I lie about my criminal record on the ESTA form?

There is a high likelihood of being caught at the US border if you lie about your criminal record on the ESTA form. US immigration authorities conduct thorough background checks and can access various international criminal databases. If discovered, lying can lead to immediate refusal of entry, possible detention, and severe legal consequences.

 

Legal consequences of lying to the US authorities

Lying on the ESTA form or in your visa application is considered immigration fraud and can lead to severe legal consequences. These may include being banned from entering the US, fines, and even potential imprisonment. It is always better to be honest and seek legal advice if you have concerns about your criminal record.

 

Need Assistance?

 

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.

 

Entering the USA with a criminal record FAQs

 

Can I enter USA with a criminal record?

Entry to the US with a criminal record depends on the nature of the crime. In most cases, individuals with a criminal record will not be eligible to enter the USA unless they have secured a criminal waiver of inadmissibility along with a relevant US visa. Minor offenses may not pose a problem, but serious crimes like drug trafficking or terrorism can lead to inadmissibility. It’s best to take legal advice before traveling.

 

What convictions stop you from entering the US?

If you have been convicted of what is considered a serious offence, commonly referred to as crimes involving moral turpitude, (CIMTs), you would not be eligible for a waiver of inadmissibility and would most likely be deemed inadmissible to the US. Examples of CIMTs include rape, kidnap, manslaughter, murder and forgery.

 

Can you get an ESTA with a police caution?

This will depend on the circumstances and it is recommended to take advice as failing to declare an arrest or criminal record can result in your ESTA application being refused.

 

Do I need a visa if I have a criminal record?

Individuals with a criminal record typically need a visa to enter the US, as it’s likely you will not be eligible for ESTA authorization. You will need to apply for a visa and disclose your criminal history, which will be assessed during the application process.

 

How does the US determine if I can enter with a criminal record?

When processing your application, the adjudicator will assess factors such as the nature of the crime, time elapsed since the conviction, and rehabilitation efforts. They consider if the individual poses a threat to society.

 

Can I apply for a waiver of inadmissibility?

Individuals deemed inadmissible due to a criminal record may be able to apply for a waiver of inadmissibility. Approval depends on the specifics of the case, including the type of crime, its impact, and evidence of rehabilitation. Legal advice can help navigate this process.

 

Will a criminal record affect my travel with the Visa Waiver Program (VWP)?

Having a criminal record generally disqualifies individuals from using the VWP. If you have a criminal record, you must apply for a visa, providing full disclosure of your history, and cannot use the VWP for entry into the US.

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