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ESTA Approval with a Criminal Record?

ESTA Approval with a Criminal Record?

If you have a criminal record – however minor the offense or how much time has passed since the conviction – you may be concerned about your eligibility to travel to the US.

The United States takes national security and public safety seriously. US authorities conduct thorough background checks on all ESTA and visa applicants. Having a criminal record, even for a minor offense, can impact your eligibility for entry

However, it is a common misconception that just because you have a criminal record, you won’t be allowed to travel to the USA. Although US immigration rules are strict, the position is not as straight forward as this.

In this guide, we explain what the rules say about traveling to the US with a criminal record, and what you could do if you have past conviction and want to visit the USA.

 

How does ESTA work?

ESTA, which stands for ‘Electronic System for Travel Authorization’, is the online pre-screening system used by US immigration authorities to determine an individual’s eligibility to travel to the United States visa-free under the Visa Waiver Program (VWP).

Nationals of the VWP countries may travel to the US and stay for up to 90 days provided they meet the VWP requirements, which includes the reason for travel being one of the permissible activities and the individual being granted ESTA.

The ESTA application form must be completed and ESTA approval granted before travel.

If your ESTA application is approved, you will not need to apply to the Embassy for a US visa. If you are denied ESTA, you will not be able to travel visa-free and will need to consider what alternative immigration options are open to you.

 

Are you eligible for ESTA if you have a criminal record?

Official guidance from the US authorities specifically recommends travelers do not attempt to travel visa-free under the visa waiver program if they “have been arrested, even if the arrest did not result in a criminal conviction” and “have a criminal record”.

You will only be eligible for ESTA if you meet the requirements, such as being a national of a VWP country. You must also answer all of the eligibility questions on the ESTA application form, which includes questions about criminal convictions, notably:

  1. 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?
  2. Have you ever violated any law related to possessing, using, or distributing illegal drugs?

 

By answering yes to any of the ESTA eligibility questions, your application will be denied and you will not be eligible to travel visa-free under the VWP.

However, being ineligible for ESTA does not in itself mean you are ineligible to travel to the US at all. In this case, you would need to apply to the US Embassy for the relevant visa (such as the B1/2 for visitors), as well as filing a request for a waiver of inadmissibility.

 

What kind of convictions need to be declared?

You must answer the ESTA questions honestly. The questions requires you to disclose any kind of arrest of conviction from anywhere in the world at any time.

You will need to declare if you have ever been arrested, regardless of whether this resulted in a conviction and regardless of whether any past conviction is considered spent. This is because the provisions of the UK’s Rehabilitation of Offenders Act 1974 do not apply in the USA.

 

Are there any exceptions to the ESTA rule on criminal records?

Current interpretation of the rules may in limited circumstances provide some leniency as to what does need to be disclosed, but you should consult with a lawyer to ascertain whether you fall into an exception.

It may, in some circumstances, be permitted for you to answer ‘no’ in your ESTA application in respect of certain offenses that are not necessarily considered crimes of ‘moral turpitude’. This is a complex area of law and not something that is advisable to assess without professional guidance.

Generally, the offense may not be considered a crime of moral turpitude if:

  • You were under 18 when you committed the offense.
  • It is deemed a purely political offense or conviction.
  • The maximum possible sentence for the offense was less than 12 months (regardless of the actual sentence you received) and you were sentenced to 6 months or less.

As such, a number of factors will determine whether the offense will be considered a crime involving moral turpitude requiring mandatory disclosure.

Ultimately, the circumstances of the offense will necessitate close analysis and interpretation under current US law. A drink driving offense for example may appear at first glance a less serious crime, but if there were wider issues concerned such as medical inadmissibility – these would need to be ruled out.

 

Do you have to declare traffic offenses on the ESTA form?

Any minor traffic offenses which did not result in your arrest or a conviction will not need to be declared. However, more serious offenses such as drunk driving where harm was caused to others or property was damaged

However, if you committed a traffic offense while in the USA and you failed to attend the court hearing or failed to pay the penalty, there may be a warrant for your arrest and

 

Can I travel to the US if I have a drink driving conviction?

Drink driving offences can be categorized as A drink driving offence or another drunken behavior related offense can be considered a “crime involving moral turpitude” and/or evidence of a (1) mental health disorder and (2) committing harmful behaviour that has caused a serious threat to the health and safety of others and the individual

 

Can you travel to the US if you have been in prison?

Whether you are admissible will depend on the nature of the crime you were convicted for. Generally speaking, if you have served a custodial sentence, the crime is likely to have been serious in nature and such it will be more likely that you would be deemed permanently inadmissible to the US. This applies even if your conviciotn is considered ‘spent’ in the UK. However, depending on the circumstances, you may be able to apply for a waiver to present the facts and evidence which may satisfy the adjudicator of your admissibility.

Take professional advice to understand your options and prospects of securing permission to travel to the US.

 

What happens if I lie on my ESTA application about my criminal record?

We are often asked whether you need to disclose an offense if it ‘wasn’t so serious’, or if it took place a long time ago. The answer is always ‘yes’.

If you lie on your ESTA application about your criminal record, and travel to the USA under the VWP without disclosing criminal offenses, you could face a number of serious consequences, as you are committing a criminal offense under US law, including being denied entry to the United States. If you are traveling on business, this could impact your employment, and if traveling for leisure, will ruin your holiday plans. You may also be subject to other penalties, such as fines or imprisonment.

Issues of dishonesty and misrepresentation can also impact any future US immigration applications you make and could result in a permanent bar from entering the country. In other words, if you decide to answer ‘no’ to an eligibility question that should be answered with a ‘yes’ and are denied ESTA and you subsequently appeal to the US Embassy to apply for a visa – your credibility will be in question and your visa may not be approved.

It’s also important to note that neither ESTA and nor a visa will not guarantee you entry into the USA. Your admission remains at the discretion of border officials who may run further checks and decide to refuse entry based on information they find.

A further concern is that even if you gain entry on this occasion, you won’t necessarily gain entry on future visits to the United States. Border authorities exercise significant discretionary powers to request information relating to an individual’s history (criminal, employment, travel, family, etc), and can deny entry on the grounds of misrepresentation or any derogatory information in the government database, regardless of whether you have previously travelled problem-free on the VWP.

 

What is a waiver of inadmissibility?

In some cases, if you have a conviction that would otherwise render you inadmissible to the USA, you may need to apply for a waiver of inadmissibility from the Department of Homeland Security, in addition to making a visa application.

A waiver is a formal request to overcome the grounds of inadmissibility based on specific circumstances. For example, you may wish to present your rehabilitation efforts and highlight the passage of time to the US immigration authorities. Erasure of a caution or conviction may also help to support your application.

Thew aver application will be evaluated by an embassy officer, who may then make a recommendation to the Customs and Border Protection Admissibility Review Office (ARO) in the United States. This agency will make a final determination on your admissibility.

Applications for waivers of inadmissibility are complex, and it is recommended to take legal advice to ensure you are following the appropriate route and submitting the relevant evidence to support your case for admission.

 

Applying for a US visa with a criminal record

Whether or not you would qualify for a US visa with a criminal record depends on the nature of your conviction and when it occurred. You would also need to apply for a waiver of inadmissibility as well as applying for the visa, and provide supporting documentation such as an ACRO Police Certificate.

Certain criminal convictions can render you inadmissible and permanently ineligible to travel to the United States. This means you may be denied a visa or entry into the country.

In general, you would be ineligible for a visa if you have been convicted of a crime that involves moral turpitude (CIMT), such as theft, fraud, or drug trafficking, which are considered to be serious offences.

Moral turpitude is a legal term that includes offenses generally deemed morally reprehensible and intrinsically wrong. Examples include, but are not limited to:

  • Crimes against the person: such as murder, manslaughter, rape, gross indecency, serious assaults, kidnapping, child abuse, child abandonment.
  • Crimes against property: such as arson, burglary, theft, robbery, fraud, receiving stolen property.
  • Crimes against government authority: such as benefit fraud, tax evasion, bribery, perjury.

 

Crimes against other individuals, such as assault, rape, kidnap, manslaughter and murder, would generally render someone inadmissible under the US requirements.

Note that where crimes are classified differently by different countries, American regulations will prevail in the context of US entry clearance.

Crimes without intent or under recklessness are not generally classed as crimes involving moral turpitude. In addition, petty offenses, juvenile crimes that meet the relevant criteria, and purely political offenses are also typically exempt.

 

What documents are needed to apply for a visa with a criminal record?

When applying for a US visa, you will need to supply the following documents as part of your application:

  • ACRO Police Certificate issued within 6 months of the date of the visa interview
  • Form VCU1

You will also need to provide details about your arrests and/or convictions.

 

What if I’m refused a visa?

Taking professional advice on your specific circumstances is the bets way to understand your options, such as reapplying and presenting new information or evidence to support your application.

 

Need assistance?

The general position, with some exceptions, is that individuals with a criminal record are not permitted to enter the US without a visa and a waiver of inadmissibility.

In all instances, we advocate full disclosure in any USCIS applications. You have to present truthfully or risk being deemed inadmissible on account of fraud or willful misrepresentation.

Taking chances with US border officials when attempting to enter the US without a valid visa and waiver of inadmissibility could lead to serious ramifications including entry denial or detention.

Since US border officials retain discretionary powers to refuse entry to any non-US national, seeking a criminal waiver of inadmissibility with an appropriate visa offers the best chance of gaining entry without issue, since the matter will have already been vetted by a Consular Officer.

For specialist advice on the the impact of a criminal record on your eligibility to travel to the US visa-free under ESTA, or for expert guidance on filing a criminal waiver, contact us.

 

ESTA approval with a criminal record FAQs

Can I apply for an ESTA if I have a criminal record?

The general rule is that you will be ineligible for ESTA is you answer “Yes” to the criminal record question. However, this does not mean that you are automatically inadmissible to the US as you may still be able to apply for a visa and a waiver for permission to travel to the USA. Applicants should take advice on their specific circumstances to avoid issues.

 

What convictions do you have to declare on an ESTA?

US authorities advise that applicants should declare all convictions. Failure to provide full disclosure can result in refused entry at the border, and inadmissibility due to fraud or misrepresentation.

 

Can you travel to the US with a criminal record?

Your options will depend on your circumstances. While you may not be eligible for visa-free travel and ESTA authorization if you have a criminal record, you may still be able to apply for a visa and a criminal waiver, which means you declare your criminal record and are assessed for admissibility before you travel to the US.

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

Author

Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law (AILA) and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with both US and UK operations to meet their workforce needs through corporate immigration.

Nita successfully acts for corporations and professionals, entrepreneurs, artists, actors, and athletes from across the globe, providing expert guidance on all aspects of US visa and nationality applications, and talent mobility to the USA.

Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

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