For non-US citizens hoping to visit the United States, immigration authorities carefully evaluate their admissibility, focusing on factors like “good moral character.” This involves thorough background checks to identify any past criminal history. Understanding how a criminal record can impact your ability to enter the U.S. is crucial for planning your travel.
Generally, individuals with a criminal record may face significant hurdles when attempting to enter the United States via air, sea, or land. A waiver of ineligibility is typically required to overcome this barrier. If you have ever been arrested or convicted of a crime, be prepared for a more complex and potentially lengthy immigration application process.
The intricacies of U.S. immigration law in this area, combined with the discretionary power held by visa adjudicators and border officials to conduct background checks, make it essential to seek expert advice. If a justified cause is identified, border officials reserve the right to refuse entry.
This guide delves into the regulations surrounding entering the U.S. with a criminal record. It explores the eligibility requirements for ESTA, visas, and waivers of admissibility, all of which can provide legal entry permission.
Regardless of the severity or age of any criminal history, and regardless of where it occurred, seeking professional guidance is strongly recommended. This will help ensure you obtain the necessary permissions and avoid any potential issues at the border.
ESTA and Criminal Records: What You Need to Know
The Visa Waiver Program (VWP) enables citizens of participating countries to visit the United States for tourism, business, or transit stays of up to 90 days without a visa.
To participate in the VWP, travelers must first obtain authorization through the Electronic System for Travel Authorization (ESTA).
The ESTA online application form includes an eligibility section designed to identify applicants who may pose a risk. Applicants are asked to disclose information regarding medical conditions, previous immigration violations, and criminal activities. Examples of questions include:
- 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 these eligibility questions is likely to lead to your ESTA application being denied.
Navigating these regulations can be complex and requires careful consideration of how the rules apply to individual situations.
Generally, if you have a criminal record, or have ever been arrested anywhere in the world (regardless of whether it led to a conviction or how long ago it occurred), you are typically ineligible for ESTA. However, minor traffic offenses that did not result in an arrest or conviction might not disqualify you, provided you meet all other eligibility criteria. You may still be ESTA eligible, provided you are otherwise eligible.
If the offense occurred in the United States and involves an outstanding fine or a failure to appear in court, a warrant for your arrest may exist, potentially causing complications when seeking admission to the United States.
In cases where you have a criminal record, or have been involved in an incident resulting in a caution or arrest, it’s best to seek expert advice before applying for ESTA or a visa.
Importantly, being ineligible for ESTA does not automatically prevent you from traveling to the U.S. You can still apply for a visa and/or a waiver of inadmissibility.
Criminal Record and US Visa Applications
If your ESTA application for visa-free travel has been refused or if you’re advised not to apply, you should explore your visa options and learn how to declare any arrests or convictions.
Even if you meet the general requirements for a specific visa category, such as a visitor visa for vacation, a criminal conviction can still lead to a denial of entry. Your application will be denied if you fall under any of the grounds of inadmissibility defined by U.S. law. Specifically, past or present actions, including criminal or drug-related activities, may render you ineligible for a visa.
Examples of criminal-related visa ineligibilities, as outlined in the Immigration and Nationality Act (INA), include:
- Conviction of a crime involving moral turpitude – INA section 212(a)(2)(A)(i)(I). The definition of moral turpitude is discussed in more detail below.
- Conviction of a drug violation – INA section 212(a)(2)(A)(i)(II).
- Having two or more criminal convictions with a total sentence of confinement of five years or more – INA section 212(a)(2)(B).
The U.S. Department of Homeland Security restricts entry to foreign nationals with criminal convictions, particularly those involving moral turpitude.
All U.S. visa applications require the disclosure of any criminal records. Regardless of when the conviction occurred, you must provide complete and honest details, as even “spent” convictions can affect your eligibility for admission to the U.S.
If you have a criminal record, you should apply for the appropriate visa and include a criminal waiver of inadmissibility, detailing all aspects of your criminal history. Keep in mind that applying for a waiver can add several months to the visa application processing time. Waivers also demand careful preparation to ensure you provide sufficient supporting documentation to demonstrate your eligibility.
The complexity is heightened by the differences in criminal rules across countries and jurisdictions. For instance, the UK’s Rehabilitation of Offenders Act treats some convictions as “spent,” but these rules don’t apply under U.S. law. Seeking expert advice ensures you present your case accurately to U.S. immigration authorities and avoid misunderstandings or accusations of misrepresentation.
How Does the Crime Type Affect Eligibility?
The nature of the criminal activity on your record significantly influences whether a criminal conviction will affect your ability to travel to the U.S.
Generally, a waiver will be denied if you have been convicted of a serious offense, commonly referred to as crimes involving moral turpitude (CIMTs), such as rape, kidnap, manslaughter, murder, or forgery.
Although there is no statutory definition of CIMT, courts generally define moral turpitude as “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.“
The Importance of Full and Honest Disclosure
U.S. immigration applicants must fully disclose their criminal history when applying to enter the U.S. Lying to authorities can result in a permanent ban from entering the U.S., and this dishonesty will be recorded in your immigration file. Future visa applications will also be subject to increased scrutiny, making it significantly harder to gain entry.
Lying on the ESTA Form About a Criminal Record
Providing false information about your criminal record on the ESTA form is a serious offense. You risk detection during background checks and at the U.S. border. U.S. Customs and Border Protection (CBP) has access to international databases and screening tools that can reveal inconsistencies. If caught, you will be refused entry, and future travel to the U.S. could be permanently prohibited.
Risk of Being Caught at the US Border
There is a high likelihood of being caught at the U.S. border if you lie about your criminal record on the ESTA form. U.S. immigration authorities conduct thorough background checks and access various international criminal databases. If discovered, lying can lead to immediate refusal of entry, potential detention, and severe legal consequences.
Legal Consequences of Lying to US Authorities
Lying on the ESTA form or in your visa application constitutes immigration fraud and can lead to severe legal repercussions, including being banned from entering the U.S., fines, and potential imprisonment. Honesty is always the best policy, and seeking legal advice is recommended if you have concerns about your criminal record.
Need Assistance?
Attempting to obtain a visa or enter the U.S. by misrepresenting a material fact or committing fraud, such as concealing a criminal record, is treated with utmost seriousness by the authorities and will negatively impact future U.S. immigration applications.
The nature of the offense(s), the punishment, when the offense(s) occurred, and the wider context of your case all play a role in determining your options if you have been arrested or convicted of a crime.
Even with a visa and a waiver of inadmissibility, entry into the U.S. is not guaranteed. You remain subject to the discretion of U.S. immigration officials at the border. Therefore, it is essential to travel with documents confirming your status and demonstrating your eligibility.
NNU Immigration specializes in advising travelers with criminal records on their travel options. Contact our U.S. immigration attorneys for guidance on how these complex rules apply to your situation and ability to travel.
Entering the USA with a Criminal Record FAQs
Can I enter the USA with a criminal record?
Entry to the U.S. 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 U.S. 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 offense, commonly referred to as crimes involving moral turpitude (CIMTs), you would likely be deemed inadmissible to the U.S. 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 seek 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 U.S., 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 U.S.
Glossary
| Term | Definition |
|---|---|
| Moral Turpitude | A legal concept in US immigration law referring to conduct that is considered inherently immoral or contrary to the accepted rules of society. |
| Inadmissibility | The condition of being barred from entering the US due to factors such as a criminal record, health issues, or security concerns. |
| Visa Waiver Program (VWP) | A program that allows citizens of certain countries, including the UK, to travel to the US for tourism or business without obtaining a visa. |
| Visitor Visa (B-1/B-2) | A non-immigrant visa for individuals visiting the US temporarily for business (B-1) or tourism (B-2). |
| ESTA | Electronic System for Travel Authorization, an automated system used to determine eligibility to travel to the US under the Visa Waiver Program. |
| Waiver of Inadmissibility | A special permission granted by US immigration authorities that allows an otherwise inadmissible person to enter the US. |
| Consular Interview | A required interview at a US embassy or consulate where an applicant’s eligibility for a visa is assessed, including their criminal history. |
| Border Inspection | The process of examining travelers at a US port of entry to determine their admissibility into the country. |
| Legal Representation | Assistance provided by an immigration attorney to help applicants navigate the US visa or waiver application process. |
| Immigration Lawyer | A lawyer who specializes in immigration law and can provide advice and representation for individuals seeking to enter or remain in the US. |
| Criminal Record | A documented history of an individual’s criminal convictions, which can impact their ability to enter the US. |
| USCIS | United States Citizenship and Immigration Services, the government agency that oversees lawful immigration to the US. |
| B-1 Visa | A non-immigrant visa for individuals entering the US temporarily for business purposes. |
| B-2 Visa | A non-immigrant visa for individuals entering the US temporarily for tourism, vacation, or visiting friends and family. |
| Application Fee | The cost required to submit visa applications or waivers for entry into the US. |
| Documentary Evidence | Official documents required to support a visa or waiver application, such as police certificates, court records, and letters of recommendation. |
Author
Nita Upadhye
Founder & Principal Attorney Nita Nicole Upadhye is a recognized leader in the field of US business immigration law, (The Legal 500, Chambers & Partners, Who’s Who Legal and AILA) and an experienced and trusted advisor to large multinational corporates through to SMEs. She provides strategic immigration advice and specialist application support to corporations and professionals, entrepreneurs, investors, artists, actors and athletes from across the globe to meet their US-bound talent mobility needs.
Nita is an active public speaker, thought leader, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals.
