Can you travel to the US with a moral turpitude conviction?
Crimes involving Moral Turpitude and Gaining Lawful Entry to the USA
To be eligible to enter the US, you must first prove that you are admissible. One of the determining factors of admissibility will be whether you are of good moral character.
However – having a criminal record in itself may not render you inadmissible. The nature of the conviction and time spent in custody will be considered to determine whether you are to be deemed admissible.
Individuals with a conviction for a crime involving ‘moral turpitude’ will however generally be considered inadmissible, but in limited circumstances, you may be able to answer ‘no’ to the ESTA application question regarding your criminal history for offenses that are not considered crimes involving moral turpitude.
What are considered crimes involving moral turpitude (‘CIMT’)?
Under current US law, moral turpitude is a legal term that includes offenses generally deemed morally reprehensible and intrinsically wrong. They relate to crimes including (but 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.
Exceptions can however apply including petty offenses, juvenile crimes that meet the relevant criteria, and purely political offenses. Crimes without intent or under recklessness are not classed as crimes involving moral turpitude.
Crimes against other individuals, such as assault, rape, kidnap, manslaughter and murder, will almost certainly render you inadmissible.
It is important to note that while crimes may be classified differently by different countries, American regulations will prevail in the context of US entry clearance.
Crimes involving moral turpitude are one of six criminal grounds for inadmissibility. These are:
- Crimes involving moral turpitude
- Violations of controlled substance laws
- Conviction of more than one offense
- Drug trafficking
- Prostitution and commercialized vice
- Commission of a serious crime in the US for which the immigrant asserted immunity from prosecution.
Exceptions & the importance of full disclosure
Generally, the offense may not be considered a crime of moral turpitude if you were under 18 when you committed the offense, or if it is deemed a purely political offense or conviction, or 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.
Take professional advice as to whether your circumstances would fall under an exception.
You have to represent yourself truthfully in any USCIS application, as such as we advocate full disclosure at all times. Failure to provide full detail will put you at risk of inadmissibility on grounds of fraud or wilful misrepresentation.
Attempting to enter the US under the VWP without disclosing criminal offenses is a criminal offense in itself.
Likewise, if you attempt entry without a valid visa and waiver of inadmissibility, you risk entry denial or detention. 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 information in the government database, regardless of whether you have previously travelled problem-free on the VWP.
Issues of dishonesty and misrepresentation either during your application or at the border will impact your future US immigration applications. You could even face a full entry ban to the US.
I have a criminal record – can I apply for a US visa?
Prior history of criminal activity is one of the most common grounds for inadmissibility. A waiver of inadmissibility is a government-issued permit allowing an otherwise ineligible person to enter the US.
The application process is however complex, and it will be important to ensure you have considered all immigration options and the suitability and likely prospects of success of making an application for a waiver given your circumstances.
To apply for criminal waiver of inadmissibility, you must present a thoroughly prepared waiver application together with your nonimmigrant visa application and visa application feeIf the embassy officer determines, after careful questioning, that you should be granted a waiver, the officer makes a recommendation to the Customs and Border Protection Admissibility Review Office (ARO)in the United States. This agency will make a final determination.
The following factors are considered in granting a nonimmigrant waiver:
- Risk of harm to society if the applicant is admitted.
- The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
- The nature of the applicant’s reasons for wishing to enter the United States.
US border officials have substantial discretionary powers to allow and refuse entry into the US. If you have been granted a criminal waiver of inadmissibility with an appropriate visa, you are likely to face fewer issues at the port of entry as your case will have already been vetted by a Consular Officer.
Travellers with a criminal record, even where there was no resulting conviction or the offense is now considered ‘spent’, should take advice on their situation to ascertain eligibility for ESTA or a US visa, and whether a criminal waiver may be required.
This article does not constitute direct legal advice and is for informational purposes only.