In this series of articles, we will tackle frequently asked questions in the context of US immigration law and help to dispel some popular misconceptions.

We have summarized some key issues below. Please note, the following content constitutes “information”, not “legal advice”. It should not be used as a substitute for seeking legal advice from a licensed US immigration attorney.

#1 “I’ve Got A Criminal Record. Will it Prevent Me From Traveling to the US as a Tourist?!”

ESTA v B1/B2 Visa

It is important to note that any adverse exposure to the criminal justice system, however slight, may affect your ability to enter the US for business or tourism purposes under the Visa Waiver Program.

In the first instance, you will need to speak to a licensed US immigration attorney, to determine whether you are eligible to travel to the US under the Visa Waiver Program or whether you will require a B1/B2 visa.

It is important to be aware of the following considerations:

i. The US Embassy website advises all business and tourist visitors to the US who have been subject to arrest not to attempt to travel to the US visa-free, under the Electronic System of Travel Authorization (ESTA), even if the arrest did not result in a criminal conviction. The US Embassy advises any individual who has ever been arrested to apply for a US visa.

ii. Similarly, the US Embassy advises any individual who has received a Police caution to apply for a US visa, rather than attempting to travel under ESTA.

iii. The Rehabilitation of Offenders Act 1974 does not apply to US visa law and therefore spent convictions must be disclosed to US Customs and Border Protection staff, regardless of when the convictions occurred. Thus, an individual with spent convictions is ineligible to enter the US for business or tourism purposes under ESTA.

If you are in any doubt, it is important to seek legal advice regarding your position. If an individual is found to have wrongfully traveled to the US under the Visa Waiver Program, they may be deported from the US and are likely to experience difficulties attempting to enter the US in future.

Obtaining a Visa With a Criminal Record

If you have a criminal record or are otherwise ineligible to travel to the US for tourist or business purposes under ESTA, you will need to apply for the appropriate visa. Usually a B1/B2 visa is required for visits to the US for business or tourism purposes. However, you will need to speak to a licensed US attorney to ensure you apply for the correct visa for your visit to the United States and, if necessary, a waiver of inadmissibility (see below).

After submitting your visa application online, you will be required to attend a face-to-face interview with US Embassy staff in London. During the interview, the Embassy staff will consider, inter alia, the type of convictions held, the dates of the convictions and whether it is in the US public interest to grant you entry to the United States. At the end of the interview, US Embassy staff will decide whether to grant you a visa.

Admissibility to the US

The mere existence of a criminal record will not automatically preclude an individual from entry to the US. However, certain types of conviction and certain types of sentence will automatically render an individual “inadmissible” to the United States, in the absence of a waiver of inadmissibility.

The most common grounds of inadmissibility to the US are:

i. Convictions involving Crimes of Moral Turpitude

An individual with a conviction for a “crime of moral turpitude”, is generally deemed inadmissible to the US. A crime of moral turpitude is defined as “An act which is morally reprehensible and intrinsically wrong”.

Such crimes include, inter alia, theft-based offenses, arson, fraud, bribery, assault, manslaughter (except negligent manslaughter), murder, rape, distribution of controlled substances, inchoate offenses involving crimes of moral turpitude and kidnapping.

ii. The Presence of 2 or More Criminal Convictions

An individual will generally be deemed inadmissible to the US if they have been convicted of two or more offenses, for which the aggregate sentence of confinement was equal to or greater than five years. Any periods of confinement in suspended sentences are included in this computation.

iii. Convictions involving Controlled Substances

Individuals who have been convicted of or who admit having committed the essential elements of an offense involving a controlled substance will be inadmissible to the US.

Waiver of Inadmissibility

If your convictions fall into one of the above categories or if your visa application is otherwise unsuccessful due to the existence of criminal convictions, you will need to seek legal advice regarding the merits of applying for a “waiver of inadmissibility”.

A waiver of inadmissibility is an official determination by the US Government that allows an otherwise ineligible person to enter the United States.

It is extremely difficult to successfully obtain a waiver of inadmissibility in respect of criminal convictions, due to the perceived risk associated with allowing individuals with serious criminal convictions to enter the United States. However, with a careful appraisal of the facts, a well-drafted application and the right strategic case management decisions you can maximize your chances of successfully obtaining entry to the US.

At Davies Legal, we have extensive experience of representing clients with criminal convictions in making applications for US visas and waivers of inadmissibility. Call now for an explanation of how we can assist you in your US immigration matter and for a free, no obligation quote.

Published: 14th February 2017

Filed under: Articles, FAQ