ESTA Approval with a Criminal Record?
One of the key criteria in US immigration is that non-US nationals pass the admissibility grounds. For individuals with a criminal record, however minor the offense or how much time has passed since the conviction, this can be a worrying and confusing area.
If you are planning to visit the US, whether for business or leisure, you will need to understand how a past conviction affects your US immigration options, since a number of factors will need to be considered, including the nature of the crime.
So if you have a criminal record, is it possible to be approved for ESTA?
What is ESTA?
ESTA, which stands for ‘Electronic System for Travel Authorization’, is the US online pre-screening system used to determine an individual’s eligibility to travel to the United States visa-free under the Visa Waiver Program (VWP).
Nationals of the 38 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.
ESTA and criminal records
The ESTA application covers several areas. One of the questions you will be asked will relate to any previous convictions, cautions, or arrests. The question you will be asked in your ESTA application is:
“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?”
By answering yes to this question, the result will inevitably be that your ESTA will be denied and you will not be eligible to travel under the VWP.
In this case, you would need to apply to the US Embassy for a visa and together with the visa application make a request for a waiver of inadmissibility.
Failure to disclose
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’.
Travelling under the VWP without disclosing criminal offenses could give rise to a number of serious consequences, as you are committing a criminal offense under US law.
Issues of dishonesty and misrepresentation will 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.
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.
Are there any exceptions to the ESTA rule?
Current interpretation of the rules may provide some leniency as to what does need to be disclosed, but you must 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.
Under current US law, for the purposes of the Immigration and Nationality Act, moral turpitude is a legal term that includes offenses relating to crimes including (but not limited to):
- Crimes against the person such as murder, manslaughter, rape, gross indecency, serious assaults, kidnapping.
- 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.
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.
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.
This article does not constitute direct legal advice and is for informational purposes only.