Moral Turpitude & Traveling to the US
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.
Generally speaking, if you have a criminal record, you will be ineligible to qualify for ESTA and so will be unable to travel to the US visa-free under the Visa Waiver Program.
Attempting to enter the US under the VWP without disclosing criminal offenses is a criminal offense in itself.
You will instead need to apply for the relevant visa and a criminal waiver of inadmissibility, declaring all details of your criminal record.
Prior history of criminal activity is one of the most common grounds for inadmissibility, but having a criminal record in itself may not necessarily render you inadmissible. The nature of the conviction and time spent in custody will be considered to determine whether you are to be deemed eligible to enter the US.
Individuals with a conviction for a crime involving ‘moral turpitude’ (CIMT) will usually be considered inadmissible, but where the offense(s) are not considered crimes involving moral turpitude, in limited circumstances, you may be able to answer ‘no’ to the ESTA application question regarding your criminal history.
As such it will be important to understand which crimes are considered CIMT, and the impact this determination will have on your eligibility to travel to the US.
Which are the crimes involving moral turpitude (CIMT)?
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
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.
Crimes against other individuals, such as assault, rape, kidnap, manslaughter and murder, will almost certainly render someone 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.
Exceptions
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 generally exempt.
In most cases, 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.
The importance of full disclosure
You have to represent yourself truthfully in any USCIS application. As such, we advocate full disclosure at all times. Failure to provide full detail will put you at risk of inadmissibility on grounds of fraud or willful misrepresentation.
Likewise, if you attempt entry without a valid visa and waiver of inadmissibility, you risk entry denial or detention.
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.
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.
Can you apply for a US visa with a criminal record?
A waiver of inadmissibility is a government-issued permit allowing an otherwise ineligible person to enter the US.
The application process is 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 a criminal waiver of inadmissibility, you must present a thoroughly prepared waiver application together with your nonimmigrant visa application and visa application fee.
If 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.
Need assistance?
NNU Immigration specialize in helping travelers to the US with issues relating to past convictions and criminal waivers. Whether you are an employee concerned about securing a visa for a transfer to the US, a parent wanting to take your family on the holiday of a lifetime or a business owner wanting to move into the US market, we can help assess your case and advise on the options available to you.
If you are worried about the impact of a past criminal conviction on your ability to travel to the US, contact us.
Moral turpitude FAQs
What crimes make you inadmissible to USA?
The categories crime for US inadmissibility generally include health, criminal activity, national security, public charge, lack of labor certification where required, fraud and misrepresentation, prior removals, unlawful presence in the United States, and other miscellaneous categories.
What disqualifies you from getting a US visa?
The applicant’s actions, such as drug use or criminal activity, may disqualify them from ESTA authorization or a visa, and require a waiver of inadmissibility.
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, (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.
