Is it possible to get approved for ESTA 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.

 

What is ESTA?

 

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 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 with 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.

 

Lying on ESTA application about 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.

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.

Taking professional advice on your specific circumstances is the best 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 criminal record FAQs

 

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

It depends on the nature of the offense. Minor offenses may not affect your eligibility, but serious crimes, especially those involving moral turpitude or controlled substances, can lead to a denial of ESTA. 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.

 

What types of criminal records can affect my ESTA application?

Crimes involving moral turpitude, drug offenses, or any serious criminal activity can affect your ESTA application. Even arrests without a conviction may need to be disclosed and could impact your eligibility.

 

Do I need to disclose all my criminal history on the ESTA application?

It is important to disclose all relevant criminal history when applying for ESTA. Failure to do so can result in denial of entry or future immigration issues.

 

What happens if my ESTA is denied due to a criminal record?

If your ESTA is denied, you will need to apply for a visa at a US embassy or consulate. This process typically involves an interview where you can explain your situation and provide supporting documentation.

 

Can I enter the US with a visa if I am denied ESTA due to a criminal record?

If your ESTA is denied, you may still be able to enter the US with a visa, provided you successfully complete the visa application process and are granted a visa by a US consular officer.

 

What is a crime of moral turpitude, and how does it affect my ESTA application?

A crime of moral turpitude is an offense that is considered morally wrong and contrary to societal standards. Such crimes can make you ineligible for ESTA and may require you to apply for a visa instead.

 

Can I be denied entry to the US even if my ESTA is approved?

Approval of ESTA does not guarantee entry to the US. US Customs and Border Protection officers have the final authority to deny entry if they find issues, including undisclosed criminal history.

 

Is there a way to appeal an ESTA denial due to a criminal record?

There is no formal appeal process for ESTA denials. However, you can apply for a visa where you may have the opportunity to address the reasons for your ESTA denial.

 

Will a criminal record from many years ago affect my ESTA application?

A criminal record, regardless of when it occurred, can affect your ESTA application. It is important to disclose any past criminal history, as failure to do so can result in denial or other legal consequences.

 

Can a criminal record in a country outside the US affect my ESTA application?

Criminal records from any country can impact your ESTA eligibility. It is important to disclose this information on your application, as the US government shares information with other countries.

 

Glossary

 

Term	Definition
ESTA	The Electronic System for Travel Authorization, an automated system that determines the eligibility of visitors to travel to the US under the Visa Waiver Program (VWP).
Visa Waiver Program (VWP)	A program that allows citizens of certain countries to travel to the US for tourism or business for up to 90 days without obtaining a visa.
Criminal Record	A record of an individual’s criminal history, including arrests, charges, and convictions, which may affect their eligibility for ESTA.
Eligibility Questions	The set of questions on the ESTA application that asks about the applicant’s criminal history, including past arrests, convictions, or violations of law.
Inadmissibility	A legal term referring to a person’s inability to enter the US based on certain factors, including criminal history or security concerns.
Moral Turpitude	A legal concept referring to conduct that is considered contrary to community standards of justice, honesty, or morality, which can impact eligibility for ESTA.
Waiver of Ineligibility	A special permission that allows an individual who is otherwise inadmissible due to a criminal record to enter the US. This is not available under ESTA and requires a visa.
Arrest	The act of detaining a person by legal authority due to suspicion of involvement in a crime, which must be disclosed on the ESTA application.
Conviction	A formal declaration that someone is guilty of a criminal offense, which can affect their eligibility for ESTA.
Controlled Substance Violation	A crime involving illegal drugs, which can lead to ineligibility for ESTA or entry into the US.
Visa Application	The process of applying for a visa to enter the US, which may be required if an ESTA application is denied due to a criminal record.
US Customs and Border Protection (CBP)	The federal agency responsible for overseeing the entry of individuals into the US, including those traveling under ESTA.
Denial of Entry	The refusal of a traveler’s entry into the US, which can occur if CBP determines that the traveler is inadmissible, often due to a criminal record.
ESTA Revocation	The cancellation of an already approved ESTA, which can occur if new information, such as a criminal record, comes to light.
Overstay	The act of remaining in the US beyond the period authorized by ESTA or a visa, which can have serious immigration consequences, including future inadmissibility.
Travel Ban	A prohibition against entering the US, which can be imposed on individuals with certain criminal records or for other security reasons.
Secondary Inspection	A more detailed examination by CBP officers at a US port of entry, often conducted when there are concerns about an individual’s criminal record or other issues.
Disclosure	The act of providing information about one’s criminal history on the ESTA application, which is mandatory for all applicants.
Visa Interview	A meeting with a US consular officer required when applying for a visa, particularly if the individual has a criminal record that disqualifies them from using ESTA.