That you’ve been charged or convicted with a crime in the past does not mean you cannot submit an ESTA application.
A lot of people still end up landing an ESTA online visa despite having served time behind bars or having an ongoing criminal charge against them.
However, it should be noted that the ESTA application procedure isn’t always easy when you have a criminal record.
What is ESTA?
If you’re a citizen of one of the countries on the United States’ Visa Waiver Program (VWP) list, you’re qualified to enter the US visa-free. However, before you can do that, you still need some form of documentation.
One of such is ESTA. Also known as ‘Electronic System for Travel Authorization,’ ESTA is an online screening procedure intended to recognize the status of intending travelers before permitting them into the US.
At its core, this visa-free authorization allows an applicant to enter and stay in the US for a period of 90 days. A typical ESTA application remains valid for a period of two years. During this time, you’re allowed to enter and leave the US as many times as possible, provided you don’t stay longer than 90 days per visit.
Can an ESTA application be denied?
As with any immigration scheme, there’s no guarantee that every applicant will be granted an ESTA USA. Based on several reasons, one of which is a criminal record, an applicant may be denied.
Now, let’s see the relationship between ESTA applications and criminal records.
Applying for an ESTA USA authorization with a criminal record
Clearly, all crimes are not the same. And when it comes to ESTA applications, too, all crimes are treated differently. This is why on your ESTA application form, you’ll find a series of questions relating to your precedents intended to figure out the kind of person you are and your criminal history.
The question of whether someone will be granted an ESTA USA despite having a criminal record against them is one that’s always getting asked by applicants. And some applicants wonder whether they can simply answer ‘NO’ instead of being honest about their status.
How will the US immigration system know about my criminal history?
In your ESTA application, you’ll be 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?”
If you answer ‘YES,’ you can expect your application to be rejected. Because then the US immigration system will perceive you as being a high-risk applicant. And they won’t want such a person coming near their border.
Now, you may want to play ‘smart’ and answer ‘NO’ even though you have a long-forgotten criminal history. If you’re lucky, you may get away with it at the point of application. That is, the system may not detect you’ve committed a crime before.
The real problem comes when you’re about to enter the US border. At that point, ‘luck’ may be against you, and the border authorities decide to double-check your status.
Since the VWP you entered with is an ESTA online visa, border authorities sometimes feel compelled to perform routine ESTA status check to see whether travelers are who they claim to be.
They can exercise significant discretionary powers to request information relating to your criminal history from both local and international databases. Now, if they find that you’ve ‘lied,’ it will automatically be counted against you as ‘misrepresentation’ – a huge criminal offense under US law.
In most cases, your ESTA authorization will be nullified, you’ll be asked to return to your country, and you may be barred from ever entering the US again.
What really happens to your ESTA application when you answer ‘YES?’
As we’ve said, when you answer ‘Yes’ to the question of whether you’ve committed a crime before, your ESTA application will automatically be denied. However, there is a quick fix.
You can apply for a regular visa at the embassy and, together with the visa application, request a waiver of inadmissibility. Of course, the embassy will ask you to provide answers to some ‘points of worry’ to prove you’re not a high-risk applicant. If the consular officer handling the matter feels satisfied by your ‘current’ status, they may proceed to grant you a visa.
Are all crimes viewed in the same light?
Fortunately, No. All crimes are not perceived the same way under US law. And as such, when applying for an ESTA authorization, different considerations are given to different criminal histories.
Technically, you may be permitted under the law to answer ‘NO’ to the question of whether you have any criminal record if the offense committed is not necessarily considered a crime of ‘moral turpitude.
I bet you’re wondering what crimes are classified as crimes of moral turpitude in the US. Well, since moral turpitude refers to ‘wicked,’ ‘immoral’ ‘unjust’ and ‘unethical’ acts, you can expect the following crimes to fall under that category:
Crimes against the person including murder, manslaughter, rape, gross indecency, serious assaults, kidnapping.
Crimes against property including arson, burglary, theft, robbery, fraud, receiving stolen property.
Crimes against government authority including benefit fraud, misrepresentation, false testimony, tax evasion, bribery.
Are there any exceptions?
Yes, there are a few exceptions for when a crime may not be considered a crime of moral turpitude. These include, but are not limited to:
Being under 18 when the crime was committed.
The conviction is perceived as being based on political bias.
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.
By and large, this aspect of the law is quite complicated at times. The best way to navigate it is to seek legal guidance. A professional attorney should be in the best position to help you understand what category your offense falls under.
ESTA Application and some criminal question confusions
While it may be easy to say an offense like manslaughter is a crime of moral turpitude, we cannot say the same of ‘drug usage.’ For example, substances like marijuana are considered illegal in some countries. Yet, in the US, some states allow marijuana usage.
To clear these confusions, let’s review another criminal record-related question typically asked during ESTA applications.
“Have you ever violated any law related to possession, use or distribution of illegal drugs?”
If you’ve been charged or convicted for violating the law by possessing, using, or distributing illegal drugs, the honest answer to the question would be a ‘YES.’ No doubt, that might lead to ESTA application denial. However, considering the complex nature of the subject, one may still be able to apply for and get a regular visa provided they can state the circumstances regarding the possession or use of drugs.
What about DUIs (Driving under the influence)?
If you’ve only been charged once with driving under the influence in your home country, you may answer any DUI-related question with a ‘NO.’ In the United States, a single case of DUI is not considered a crime.
However, if you have a long history of DUIs and some of your actions have led to or hurt others, you have to answer ‘Yes.’
There you have it – the conditions for applying for ESTA USA with a criminal record.