Can I go to America with a criminal record from UK?

If you have a criminal record from the UK, you may be ineligible to go to America, although much will depend on the nature and extent of any past criminality. If you have been convicted of an offence, rather than simply cautioned, you may be permanently ineligible to receive a US visa, although this does not automatically mean that you cannot travel to the United States, but that you will require a criminal waiver of (in)admissibility to do so.

The INA sets out the scenarios under section 212(a) which will make you ineligible for a visa on a number of different grounds, including the following criminal-related grounds:

• a conviction for a crime involving moral turpitude, other than a purely political offence, or a conviction for an attempt or conspiracy to commit this type of crime
• a conviction for a drug violation, or a conviction for an attempt or conspiracy to violate any applicable laws relating to a controlled substance
• at least two criminal convictions, other than purely political offences, for which the total term of imprisonment was for 5 or more years.

However, there are various qualifications to these types of convictions. For example, for crimes involving moral turpitude (CIMTs), such as fraud or assault, you will not be ineligible for a US visa if you committed only one such crime under the age of 18 and the crime was committed, and any prison sentence was completed, more than 5 years prior to applying for your visa. You will also not be inadmissible if you have been convicted of a CIMT, where the maximum penalty did not exceed imprisonment for one year and you were not sentenced to a custodial term of more than 6 months. However, if you were sentenced to 12 months in prison, but only served 6 months, this does not fall within the qualification.

Can you get an ESTA with a criminal conviction?

The Electronic System for Travel Authorization (ESTA) is an online system that determines the eligibility of certain visitors to travel to America under the Visa Waiver Program (VWP). The VWP permits citizens of multiple countries, including the UK, to travel to the US for the purposes of business or tourism for stays of up to 90 days without a visa.

Authorisation via ESTA does not determine whether you are admissible to the United States, where US Customs and Border Protection (CBP) officers determine admissibility upon your arrival, but it provides a way of pre-screening those looking to travel visa-free.

You can apply for your ESTA at any time before you travel, and ideally at least 72 hours prior to your proposed departure to the United States, although it is recommended that travellers apply as soon as they begin preparing travel plans and prior to purchasing any airline tickets. If your application for ESTA authorisation is denied, you will instead need to apply for a nonimmigrant visa at a US Embassy or Consulate to travel to the United States.

The ESTA application is an online form on the CBP website, where the questions are designed to ascertain if you will pose a threat to US security and public safety. The form covers questions relating to your personal details, your travel history and whether you are eligible under the VWP requirements, including if you have any criminal convictions.

You cannot usually apply for an ESTA visa waiver if you have a criminal record. You also cannot usually apply if you have been arrested, even if any arrest did not result in a conviction or you are still awaiting trial for a crime that you have been charged with.

Importantly, full disclosure is essential when completing your ESTA application, where it is a criminal offence under US law if you fail to answer the questions truthfully and comprehensively. If you are found to have failed to disclose any criminal history, this will impact any application, both now and in the future, to apply for a visa.

What are the criminal grounds for inadmissibility?

There are six basic criminal grounds for inadmissibility:

• Crimes involving moral turpitude
• Violations of controlled substance laws
• Conviction of more than one offense
• Drug trafficking
• Prostitution and commercialized vice, and
  Commission of a serious crime in the US for which the immigrant asserted immunity from prosecution.

For crimes involving ‘moral turpitude’ there is no statutory definition, but typically involve elements of fraud, larceny, or attempt to harm persons or things. These crimes can be classified into three general categories:

• Crimes committed against property (for example, arson, blackmail, burglary, larceny, robbery, fraud, false pretences, theft, receiving stolen property);
• Crimes committed against governmental authority (for example, bribery, tax evasion, perjury, fraud against government functions); and
• Crimes committed against persons, family relationships, and sexual morality (for example, serious assaults, gross indecency, lewdness, kidnapping, contributing to the delinquency of a minor, murder, voluntary manslaughter, rape).

What do you need to declare for a US visa?

If you need to apply for a US visa, as with an ESTA application, you cannot conceal any past criminal history. Depending on the nature of the crime and your age at the time, you may still be approved for a visa to travel to the United States, but the decision to issue the visa will be made by the consular officer tasked with deciding your application.

If you have ever been arrested, cautioned or convicted of a criminal offence in the UK, or anywhere else in the world, you will be required to declare this when applying for a US visa. This applies, even if any conviction is considered spent under UK law, or the applicable laws of the country where the offence or offences were committed.

As part of the documentation in support of your visa, you should submit a recent police certificate from the UK’s Criminal Records Office (ACRO) detailing your criminal record in the UK. Information on obtaining a certificate is available from the ACRO website. You must also complete the personal data form VCU-1, and should provide as much detail as possible concerning your arrests/cautions/convictions, including those outside the UK.

If you were arrested and/or convicted of an offence in the United States or elsewhere outside the UK, you must obtain a court record from the court(s) in which you were tried. These records should show the nature of the offence(s) committed, or currently pending, and the section(s) of law contravened and any penalty imposed. If the arrest did not result in a conviction, you should submit with your application the documents relating to the arrest or, alternatively, a sworn statement which gives the reason and location of the arrest.

Importantly, even if any criminal record makes you inadmissible for a visa, you may be able to apply for a criminal waiver of admissibility (inadmissibility).

Do spent convictions need to be declared for US ESTA or visa?

All convictions must be declared for the purposes of either an ESTA or a US visa, including any convictions that are legally deemed ‘spent’ under UK law.

Under the relevant law in the UK, eligible convictions or cautions become ‘spent’ after a specified period of time, although the rehabilitation period depends on the sentence given as a result of a conviction, as well as a person’s age when they were convicted. Additionally, following a recent change in this law, the time that people with criminal convictions are legally required to declare them to most potential employers after serving their sentence has been significantly reduced. Now, under reformed UK laws, custodial sentences of 4 or more years for less serious crimes will become ‘spent’ after a 7-year period of rehabilitation, as long as no further offence is committed. This means that thousands of former offenders in the UK will find it easier to get work and rebuild their lives without these barriers.

However, for the purposes of applying for an ESTA or US visa, any legal reforms in the UK are of no relevance. Any former offender must still declare any convictions, regardless of when the crime was committed. Additionally, any arrests or cautions must also be declared, even if you have not been convicted or are awaiting trial for an alleged offence.

What is a criminal waiver of admissibility?

Having a criminal record is one of the most common causes for denial of a visa to the United States, although a criminal waiver of admissibility — technically referred to under the rules as a criminal waiver of inadmissibility — may be used to gain permission when you would otherwise be considered ineligible for entry into the USA.

The Immigration and Nationality Act (INA) makes legislative provision for the different types of US visas available to foreign nationals, together with the various conditions that must be met before being approved for admission. The different scenarios in which a person may be ineligible for a visa, known as visa ineligibilities, are also set out in the INA.

However, under separate provisions of the INA, certain ineligible applicants can apply for a discretionary waiver of their ineligibility, including a criminal waiver of (in)admissibility. A criminal waiver of admissibility is essentially an application for legal entry to the US made by someone who is otherwise ineligible, or inadmissible, on grounds of previous criminality.

If a decision is made that you are ineligible for a US visa, you will be informed of the reason(s) for your denial based on the applicable provisions of the INA. You will also be told if a request for a criminal waiver of admissibility (inadmissibility) is available, where this will depend on the category of visa sought and the nature of the criminality involved.

If you are applying for a US immigrant visa (green card) from the UK, a determination on your eligibility for a visa cannot be made until the day of your visa interview. If you are found ineligible because of your criminal record, you will be advised if a waiver of ineligibility is available to you and provided with further information at that time.

Who is eligible to apply for a criminal waiver?

Except for individuals with inadmissibility findings related to security and other narrow areas, most other individuals barred from the United States can usually apply for a nonimmigrant waiver of inadmissibility at a US Embassy.

If you have been deemed inadmissible based on your criminal record, you may only seek a waiver of inadmissibility for certain convictions. You must also establish grounds for this waiver. In most cases, you would usually need to show that at least 15 years have passed since the commission of the offence and your admission to the US will not be contrary to national welfare, safety or security, or that a qualifying lawful permanent resident relative would experience extreme hardship if you were denied admission to the States.

Not all visa categories can apply for all the inadmissibility categories, so it will be important to take advice on your specific circumstances.

How do you apply for a criminal waiver for the US?

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.

What is the inadmissibility waiver form?

Form I-601 is used to apply for a waiver of inadmissibility if you are seeking permission to enter the US or are seeking to adjust your status (such as applying for a Green Card).

Form I-601A is for individuals who are in the US without lawful status who have immediate relatives who are US citizens or Green Card holders. The waiver application has the specific purpose of waiving the time you are banned from re-entering the US as a result of your unlawful status and presence in the country.

What are the waiver application criteria?

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.
• It is important to note that even if a waiver is recommended and a visa is ultimately granted, some travellers still face intense scrutiny and at times harsh treatment by Customs and Border Protection when entering the United States.

This type of behaviour cannot be predicted and is entirely discretionary. If unnecessary delays when entering the United States continue to occur even after a visa has been approved by the State Department then you will want to consider whether to file a complaint through the DHS Traveller Redress Inquiry Program (TRIP).

Supporting your declaration for admissibility

When applying for a criminal waiver of admissibility (inadmissibility) using Form I-601, you will need to submit information and documentation that establishes why you qualify for a waiver. In all cases, you must demonstrate that the approval of your application is warranted as a matter of discretion, with any favourable factors outweighing the unfavourable factors in your case. Supporting documentation could therefore include:

• an affidavit from yourself or any other relevant individual
  an ACRO police certificate detailing your criminal record in the UK, together with police reports from any other country that you have lived in
• court records relating to any criminal conviction or charge in the UK, or elsewhere
• any evidence to help establish that your admission to the US would not be contrary to national welfare, public safety or security in the United States
• any evidence establishing a relevant family relationship, if relying on extreme hardship
• any evidence to show that a denial of your admission to the US would result in extreme hardship to any qualifying relative, such as serious health or financial issues.

In deciding whether to grant a criminal waiver of admissibility (inadmissibility), USCIS must balance any adverse factors against favourable social and humane considerations as set out in your application or supporting documentation. Form I-601 provides a section for a short statement to this effect, but a more detailed account by way of a signed affidavit is better if you are to persuade immigration officials of a waiver decision in your favour.

Factors to consider when building your waiver application include evidence of good moral character, such as community involvement and standing, and positive reasons and consquences as to why a waiver should be granted. If the waiver relies on a qualifying relative, you may be able to show that refusing admission would result in extreme hardship for your relative, which could cover medical, financial, emotional or parental issues.

What is a Personal Data Sheet (VCU-01)?

Form VCU-1 is a personal data form that you will need to complete if you have ever been arrested, cautioned or convicted of an offence and are applying for a US visa from the UK. This form must be completed online, where handwritten forms will be discarded, and you must sign and date the declaration that your answers are true and correct.

You will need to provide your personal details, together with full details of any arrest, charge, caution or conviction, regardless of when and where this happened. Additionally, you will need to disclose if you have ever been denied entry from, overstayed or been deported from the US. You will also be required to submit an ACRO Police Certificate issued within 6 months of the date of the visa interview. The cost to apply for an ACRO certificate is £55, where it can take up to 20 working days to receive a certificate after requesting one.

What has to be disclosed in the application?

The applicant is obligated to provide full disclosure to the authorities of any factors which may render them inadmissible, such as criminal convictions and immigration violations. You may also be required to provide further information or documents relating to the inadmissibility grounds. Failure to disclose or misrepresenting information in itself can provide grounds for inadmissibility.

How to file a complaint to the DHS Traveller Redress Inquiry Program (TRIP)

A DHS TRIP submission can be made if you are facing the following issues:

• You are always subjected to additional screening when going through an airport security checkpoint.
• You were denied boarding.
• You are directed to a ticket counter every time you fly.
• The airline ticket agent stated that you are on a Federal Government Watch List.
• You are detained during your travel experience.
• A ticket agent took your identification and called someone before handing you a boarding pass.
• You missed your flight while attempting to obtain a boarding pass.
• You are repeatedly referred for secondary screening when clearing U.S. Customs and Border Protection.
• You were denied entry into the United States.

If you have questions regarding the need for a waiver of inadmissibility or a DHS TRIP submission please contact us for a comprehensive review of your circumstances and a detailed discussion about strategy, procedures, timing and costs.