Whether you are traveling to the United States for pleasure or you are hoping to apply for a nonimmigrant visa to work there, you will need to make certain declarations. This means that if you have ever been cautioned, arrested, or convicted, you must make it known.
You might have been told that having a criminal record will automatically mean you cannot enter the U.S., but this is not always the case.
What is the Visa Waiver Program
People from certain countries wishing to enter the United States for less than ninety days can travel under the Visa Waiver Program (VWP), meaning they do not have to apply for a visa. However, those with a criminal history are ineligible to travel under the VWP and must apply for a visa through the U.S. Embassy in their country. It does not matter whether the arrest or conviction occurred a long time ago and is considered spent, it must still be declared.
Citizens from countries eligible to use the VWP will need to apply for authorization to travel to the U.S. under the Electronic System for Travel Authorization (ESTA). On the ESTA form, the following question is asked:
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?
This question is relating to offenses under the legal term ‘moral turpitude’, which includes crimes like:
- serious assaults
- gross indecency
- receiving stolen property
- tax evasion
- benefit fraud
It should be noted that the above crimes are not classed as moral turpitude if you committed the crime when you were under the age of 18, the maximum sentence for the offense was less than 12 months, or at least five years have passed since your conviction or release from prison.
You are also likely to be asked if you have ever violated any laws relating to possession or distribution of illegal drugs, as well as if you have ever engaged in any terrorist activities, genocide, espionage, or sabotage.
If you answer yes to any of the questions relating to criminal offenses, you will be unable to apply to enter the U.S. under the VWP. However, it does not mean that you cannot enter the U.S. What it does mean is that you will have to apply for a visa.
Although some minor traffic offenses which did not result in an arrest or conviction do not prevent you from using the VWP, it is best to apply for a visa if you are not sure.
Applying for a Visa if You Have a Criminal History
The experts at Graham Adair say that if you have ever been arrested or convicted of a criminal offense, you must apply for a visa. You will need to supply details of the offense, regardless of how long ago it occurred. If you are traveling to the U.S. for business, not disclosing this information could have implications for your future business or employment. It may be worth contacting a business immigration lawyer in Austin for advice.
You will need to provide evidence of your criminal record via a police certificate. This certificate should be dated no more than six months prior to your interview.
Although some criminal offenses may prevent you from entering the United States, not all will. You will not be able to enter the U.S. through the VWP with any criminal past, and you are required to declare this information and apply for a visa, no matter when the offense occurred.