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Help! Will My Criminal Record Prevent Me From Travelling to the USA?

British nationals who have had run-ins with the law often become confused- and alarmed – upon reading the following question as they complete the online Electronic System for Travel Authorization (ESTA), necessary for visa-free travel under the Visa Waiver Program:

"Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more?"

The question is undoubtedly confusing, particularly if you're not legally trained, and begs several questions: what exactly is a 'crime involving moral turpitude', or CIMT, as it's known to immigration professionals? And how do I know if the aggregate sentence to confinement was five years or more? Does this mean time I actually spent in jail, or is it the sum of all maximum sentences possible for the various crimes even if I spent less time, or no time, in jail?

Before we advance any further, it's important to note that numerous scholarly articles and, indeed, entire books, have been written on this subject. The present blog will not attempt to provide an in-depth analysis to these issues and is merely meant as introductory information on this topic. It most certainly does not constitute legal advice for what a person should do in their particular case.

Confusing or not, the ESTA question (and the similar question posed in the I-94 Arrival/ Departure record) must be dealt with. Answering the question incorrectly could have severe consequences if US immigration officials later determine that the applicant has committed misrepresentation or fraud in failing to declare a qualifying arrest or conviction. For more about the dangers of misrepresentations in US immigration-related matters, read this earlier post.

On the other hand, the declaration of an arrest or conviction where no qualifying offence exists will also have certain unpleasant consequences. Declaring an offense may well mean that the ESTA application is denied, the applicant is unable to travel visa-free to the USA and must instead go to the US Embassy in London or Belfast to obtain a US visa, and the ESTA denial will have to be declared in future applications for US visas. The US Embassy advises applicants to apply for a US visa at the Embassy when in doubt about whether they need to declare the offence present in their particular case.

Applicants often wonder, what must be declared? Unlike UK law which may permit applicants to avoid disclosure of certain criminal convictions and arrests, applicants for a US visa must declare all qualifying arrests, cautions and criminal convictions. This the case even if the applicant is applying for a US visa in the UK as it is US law that governs the issuance of the visa. The Rehabilitation of Offenders Act does not apply to US visa applications. Disclosure is required even if the UK arresting police officer might have told the applicant that he or she need not worry about a particular arrest or caution and that it will never have to be declared in the future. At the risk of sounding like a broken record, all qualifying offences must be disclosed when a person applies for a US visa, even if they would not appear on an ACRO police certificate.

The topic of Crimes Involving Moral Turpitude (CIMTs) is an area of US immigration law that is particularly complex and visa applicants can pay a significant price for their mistakes. If a visa applicant has any doubt about whether he or she has engaged in qualifying criminal activity that must be declared to the US Embassy in London, it would be wise to speak to a US immigration lawyer.

The American Immigration Law Office is a US immigration law firm in London, UK. Do you have questions about whether arrests or criminal convictions will affect your US visa application? Contact the firm's US immigration lawyer in London today.