Travelling to America (USA) – A detailed guide

On this page:-

Aim of this information

This information forms part of our travel section and focuses on travel to the United States (US). We also have a simple guide.

This section focuses specifically on those travelling to the US for 90 days or less for leisure or business purposes who have a criminal record. It sets out the various processes that the US authorities have in place and helps you identify which programme you should apply for to travel to the US.

Why is this important?

Ordinarily, those travelling to the US for less than 90 days can travel under the Visa Waiver Programme (VWP). However, if you have been arrested or convicted of certain offences, you are ineligible to travel under the VWP and will have to apply to the US Embassy for a Visa.

It’s important that you know if you can travel under the VWP or whether you will need to allow additional time and money to apply for a Visa.

Introduction

In 2008, over 4.5 million people visited the US from the UK. A significant number of those travelling to the US every year will have some form of criminal record. Many people successfully apply for a visa. Many simply choose to travel under the VWP and not declare that they have a criminal record.

It is important to point out that there may be specific additional conditions on you when travelling abroad, for example if you are on licence or are subject to notification requirements under the Sexual Offences Act 2003.

The US Department of Homeland Security has also suspended the right of those with criminal convictions to transit the US without a visa. The Embassy says this applies even if you are only changing planes at a US airport (i.e. staying airside). Although it seems difficult to see how the US authorities can police this requirement, a problem may well arise if, when in transit, you need to go through US immigration (for example, in a security alert). At some airports, it is also necessary to clear immigration if the onward flight leaves from another terminal.

Please note: This information not been endorsed by the US Embassy or the US Department of Homeland Security, and should not be seen as replacing the need for specific legal advice on US law or for services in helping you with your application for a Visa.

If I don’t tell them, how will they find out?

It is a common question – “If I don’t tell them, how will they find out?”. The answer is, if you don’t tell the US about your criminal record, they probably won’t find out.

If your criminal record means that you are ineligible to travel under the Visa Waiver Program, then you have a choice:

  1. Apply for a visa
  2. Lie on the ESTA form and travel under the VWP

Lying on the ESTA form

Access to the UK Police National Computer

The United States does not have access to the Police National Computer (see the FOI response below). The security services do share information about high-profile crimes, serious offences or if someone is a security risk, but this is not as a matter of routine.

However, the United States authorities are able to seek details of any criminal convictions held on the Police National Computer on an individual request basis through Interpol channels. This rarely happens.

Potential offences for non-disclosure

If you attempt to travel under the VWP and as a result have to make a false declaration to the question asked as part of the ESTA process, you are potentially committing a criminal offence under US law. In particular, two areas of law are relevant:

  1. The Immigration and Nationality Act – Sec. 275. [8 U.S.C. 1325] – Entry of alien at improper time or place; misrepresentation and concealment of facts – Maximum 2 years in prison
  2. U.S. Code Title 18, Part 1, Chapter 75, Section 1546 – Fraud and misuse of visas, permits, and other documents – Maximum 10 years in prison
    This section is copied in full in Annex B.

People lie all the time – but is it right for you?

We speak to people all the time who are weighing up whether to lie on the ESTA form or whether to apply for a visa. Ultimately, this is a decision that only you can make.

For some people, the potential offences for non-disclosure, coupled with the anxiety they’d feel when travelling, makes them decide that applying for a visa is the right route to go.

For others, hearing from friends that have travelled with no problems makes them think that there won’t be a problem.

Many people with convictions travel to the US every year from the UK, they do not disclose their convictions, and they travel without any issues. However, to do this, you will need to lie as part of the ESTA application process (to travel under the Visa Waiver Programme), and by doing this you are potentially committing a criminal offence under US law. We are not aware of anybody that has been prosecuted for this, but we are aware of instances where individuals have been questioned by officials and sent back to the UK on the next flight (at their own cost). If your visit is for business,this could have implications on your future employment. Not knowing what would happen if you were questioned can be extremely worrying. For those who travel for a holiday, the anxiety could ruin your trip. If you think that it is better for you to lie of the ESTA application form, you need to be prepared to continue this lie if you are questioned on a face to face basis. This could be quite a frightening experience.

 

The Visa Waiver Program

What is the Visa Waiver Program?

The VWP enables nationals of participating countries, including the United Kingdom, to travel to the US for tourism or business for stays of 90 days or less without obtaining a visa.

Historically, travel under the VWP has been free. However, under a new US law that became effective on 4th March 2010, a fee of at least $10.00 is to be charged for each authorisation under ESTA for visa-free travel to the United States.

For more details on the VWP, and those who cannot travel under the VWP, visit the Travel.State.Gov website. Essentially, you may use the VWP to travel if:

  • You have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA)
  • You present the appropriate type of passport valid for six months past your expected stay in the United States (unless country-specific agreements provide exemptions, which the UK does).
  • The purpose of your stay in the United States is 90 days or less for tourism or business (Visitor (B) visa) purpose of travel.
  • If arriving by air or sea, you are travelling on an approved carrier and have a return trip ticket to any foreign destination;
  • You can demonstrate the intent to stay 90 days or less in the United States and demonstrate sufficient funds to support yourself while in the United States. Learn more on the CBP website.

When do I have to apply for a visa instead of using the VWP?

You must meet the guidelines listed in the section above in order to seek admission to the US under the Visa Waiver Program. Those who do not meet these guidelines must apply for a visa.

How do I find out whether I can travel under the VWP?

The Electronic System for Travel Authorisation (ESTA)

Previously, a non-immigrant visa waiver arrival/departure form was completed before travel to the US. This process now has to be done electronically before travel.

Since 12th January 2009, you have to register with the Electronic System for Travel Authorisation (ESTA) via the system’s website before you travel. Effectively, the ESTA replaces the previous requirement for you to fill in a green visa waiver form every time you enter the US. Instead, the ESTA is valid for multiple entries over a two-year period as long as you do not change passports in the meantime. Since January 2010, VWP travellers who have not obtained approval through ESTA should expect to be denied boarding on any air carrier bound for the United States.

You may travel under the VWP if you have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA). The ESTA process asks questions regarding criminal convictions. If you answer yes to the questions that are asked during the ESTA process (see below) regarding convictions, you will be told that you are not be eligible to travel under the VWP and will instead have to apply for a visa.

The question on the ESTA website

The question on the ESTA website which relates specifically to people with criminal convictions is:

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? (These types of offences were previously referred to as Crimes of Moral Turpitude – see below).

Have you ever violated any law related to possessing, using or distributing illegal drugs?

In the guidance section, it states:

“This question refers to crimes involving moral turpitude – Such offences generally involve conduct which is inherently base, vile, or depraved and contrary to the accepted rules of morality and the duties owed to persons or society in general. There are factors, such as the age of the offender or the date of the offence, that may affect whether an offence will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act.

For further information refer to s212(a)(2) of the Immigration and Nationality Act, 8 U.S.C.  s1182(a)(2), s101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. s1101(a)(43) and corresponding regulations in the Code of Federal Regulations.”

Further information on the ESTA form and moral turpitude can be found here.

The question on the Visa Waiver Wizard

There is an online ‘wizard’ on the London US Embassy website which can be used to help you to determine your eligibility to travel under the VWP. In the section on criminal convictions, it asks:

“Have you ever been arrested or convicted for any reason in any country, even if the arrest did not lead to a conviction, or do you have a criminal record? Please note: the Rehabilitation of Offenders Act does not apply to U.S. visa law. If you are unsure, press YES”

If you select “No”, you are able to proceed using the ESTA process. If you select “Yes”, the following text is displayed:

“Some applicants are uncertain how to answer the question, “have you ever been arrested?”

In general, minor motoring offences outside the U.S. that were disposed of by paying a ticket by mail have no bearing on admission to the United States. Travellers with minor traffic offences that did not result in their arrest and/or conviction for the offence may travel visa free, provided they are otherwise qualified. If you are not sure whether or not you are eligible to travel visa free, the only way to resolve this question would be to apply for a visa. The Embassy and the Live Operator Information Service cannot provide any further guidance on this matter until you appear in person before a consular officer.

If a traffic offence occurred while you were in the United States, and you have an outstanding fine against you, or if you did not attend your court hearing, it is possible there may be a warrant out for your arrest and you will experience significant problems when applying for admission at the U.S. port of entry. The Embassy cannot assist you in this regard. You must resolve the issue before travelling, by contacting the court where you were to appear. If you do not know the address of the court then information is available from the Internet at http://www.uscourts.gov/links.html.

Is the full extent of your history of legal violations limited solely to minor traffic offences that did not result in your arrest and/or conviction?”

If you answer “Yes”, you are able to proceed using the ESTA process. If you answer “No” to the further question, it states the following:

“Not Eligible for Travel on Visa Waiver Program travel

You are not eligible to travel on the Visa Waiver Program, and must possess a valid visa for entry into the United States.

Please note that the Rehabilitation of Offenders Act does not apply to U.S. visa law. If you attempt to travel without a visa, you may be refused entry into the United States at your personal expense.”

How do I classify my own conviction for the purposes of the VWP?

You will notice that the question asked by the ESTA process differs from that mentioned in the Visa Wizard section.

Through the Visa Wizard section of the US Embassy website, a general question is asked about any arrests or convictions, and if you answer “Yes” it advises that you have to apply for a visa.

However, through the ESTA process, the question that is asked relates to arrests or convictions:-

  1. resulting in serious damage to property, or serious harm to another person or government authority (these types of offences were previously referred to as crimes of moral turpitude)
  2. violating any law related to possessing, using or distributing illegal drugs

Therefore, if you have been arrested or convicted, but for an offence that isn’t covered by the questions asked on the ESTA, it isn’t clear whether you have to apply for a visa or not.

Under the eligibility to travel under the VWP, it states you are able to travel under a VWP if you have received an authorisation to travel under the VWP through the Electronic System for Travel Authorisation (ESTA). Therefore, whether you are able to travel under the VWP depends on how you answer the question that is put to you as part of the ESTA process.

It would therefore appear that so long as you can answer “No” to the question asked as part of the ESTA process, you are able to travel under the VWP.

There is an anomaly here between the ESTA and the on-line guidance.  We’ve highlighted this to the Embassy. We suggest that you work from the question on the ESTA form.

What does ‘serious damage to property, or serious harm to another person or government authority mean?

The majority of individuals unable to travel under the VWP will be unable to do so because they have been arrested or convicted of a crime involving serious damage to property, or serious harm to another person or government authority.  These types of offences were previously referred to as ‘crimes of moral turpitude’ as part of the ESTA process and will still be referred to in this way when applying for a visa.

Moral turpitude is a legal concept in the United States that refers to conduct that is considered contrary to community standards of justice, honesty or good morals. The term first appeared in US immigration law in the 19th century, but it has never been defined by statute. However, it has been given meaning by courts that have construed it over the years.

You are potentially ineligible for a visa under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act if you have been convicted of a statutory offence which involves moral turpitude

Crimes involving moral turpitude are grouped into three general categories. They are:

  1. Crimes committed against property (for example, arson, blackmail, burglary, larceny, robbery, fraud, false pretences, theft, receiving stolen property);
  2. Crimes committed against governmental authority (for example, bribery, tax evasion, perjury, fraud against government functions); and
  3. 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).
We have put together a list of offences detailing how they are categorised – see Annex A (at the bottom of this page). This list has been taken from the US Department of State Foreign Affairs Manual Volume 9 – Visas 9 FAM 40.21(a) Notes, which is available to download here.

The presence or absence of moral turpitude is determined by the nature of the offence, and not by the acts underlying the conviction. Furthermore, the degree of punishment meted out does not determine whether the crime is a “crime involving moral turpitude” (CIMT); crimes punished by only fines or even less have still been held to be CIMT.

The determination of whether a crime is a CIMT is a matter of US law, regardless of where the conviction took place. Whether or not a US or a foreign conviction is a conviction of a CIMT so as to render an individual ineligible for a visa or inadmissible to the US is often a complex question requiring careful legal analysis of the surrounding facts and the law. In important situations, you may benefit from seeking the advice of a specialist US Immigration legal firm.  Further information on the ESTA form and moral turpitude can be found here.

What does ‘illegal drugs mean?

You are ineligible to travel under the VWP if you have ever violated any law related to possessing, using or distributing illegal drugs.

The term ‘illegal use of drugs’ means the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act (21 U.S.C. 801 et seq).  Such term does not include the use of a drug taken under supervision by a licensed health care professional, or other uses authorised by the Controlled Substances Act or other provisions of Federal law.

The term “drug” means a controlled substance, as defined in schedules I-V of section 202 of the Controlled Substances Act (21 U.S.C. 812).

What if I travel under the VWP and get told I am inadmissible?

If you travel to the US under the Visa Waiver Program and are found to be inadmissible you will be denied admission and returned home aboard the carrier on which you arrived in the United States. You could also be prosecuted for offences under US law.

Applying for a Visa

If you are not able to travel under the VWP, you will have to apply for a visa. The information below is relating to applying for a Visitors Business and Pleasure B-2 Visa. Requirements may vary for other types of visa.

How do I apply for a visa?

A visa is issued by a US Embassy. A visa entitles the holder to travel to the US and apply for admission; it does not guarantee entry. An immigration inspector at the port of entry determines the visa holder’s eligibility for admission into the US.

A non-immigrant visa is required by anyone seeking temporary admission into the US who is not eligible to travel visa free under the VWP. Non-immigrant visas cover visits for tourism, business, work or study. The process of applying for a visa involves submitting forms electronically. Internet access is therefore necessary. More information on Visitors Business and Pleasure B-2 Visa can be found here.

The Embassy recommends that individuals apply for visas well in advance of their proposed date of travel. No assurances regarding the issuance of visas can be given in advance. Therefore, final travel plans or the purchase of non refundable ticket should not be made until a visa has been issued and you are in receipt of the passport

What is the process for applying for a B-2 Visa (Holiday visa)?

For more information on applying for different types of visa click here to read information on the US Embassy website. In general, holiday makers travelling to the United States require valid B-2 visas. If issued, they are valid for a maximum of 10 years, but the length of the visa will vary depending on the circumstances.

If you have been arrested or convicted, you are required to do the following – each step is explained in more detail below:

  1. Step 1 – Complete an on-line visa application form – You need to complete a non-immigrant visa application form (DS-160) and pay the appropriate fee
  2. Step 2 – Provide details of your criminal record – You do this by completing a Personal Data Sheet (VC01)
  3. Step 3 – Provide official confirmation of your criminal record – You do this by obtaining a police certificate from the ACPO issued less than 6 months before your visa interview
  4. Step 4 – Arrange an interview at the Embassy – You need to arrange and attend an interview at the US Embassy with the Visa Coordination Officer
  5. Step 5 – Attend the interview
  6. Step 6 – Wait for a decision

There are more details below on each of these steps.

STEP 1 – Complete a visa application form

Firstly, you will have to complete a non-immigrant visa application form (DS-160). This must be filled out online.

A non-immigrant visa application costs $160.00, which is approximately £100. Payment is made at the time of scheduling the non-immigrant visa interview with the Operator Assisted Information Service (see the section on arranging an interview). On confirmation that your payment has been accepted, the operator will schedule the appointment. Confirmation of the appointment date and time will be sent by email together with a receipt for the application fee. You will need to take this with you to your interview.

Questions on the Visa application form (DS-160) regarding arrests and convictions

In the “Security and Background Section”, it asks

  • “Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty, or other similar action?”
  • “Have you ever violated, or engaged in a conspiracy to violate, any law relating to controlled substances?”
  • “Have you ever been involved in, or do you seek to engage in, money laundering?”
  • “Have you committed, ordered, incited, assisted, or otherwise participated in extrajudicial killings, political killings, or other acts of violence?”

How to answer the question “have you ever been arrested or convicted?”

On the US Embassy website it states that “if you are not sure whether or not you are eligible to travel visa free, the only way to resolve this question would be to apply for a visa. The Embassy and the Live Operator Information Service cannot provide any further guidance on this matter until you appear in person before a consular officer.”

When Unlock approached the US Embassy, they stated that “it does not matter what the criminal offence was or how long ago it occurred. The person will need to be interviewed, because each case is dealt with on an individual basis.” The Embassy stated that the need to declare a conviction has been in place since 1988, but agrees that, since September 11 2001, there has been a gradual tightening of the regulations.

Under US Immigration law, if you have been arrested at anytime, you are required to declare the arrest when applying for a visa. If the arrest resulted in a conviction, you may be permanently ineligible to receive a visa. If you are permanently ineligible, in order to travel, a waiver of the permanent ineligibility is required.

The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travellers with a spent conviction are required to declare the arrest and/or conviction.

The question asked by the US previously related to offences involving ‘moral turpitude’. This is no longer the case. However, as part of their decision process, they will look at your case and place specific emphasis on those offences which involve ‘moral turpitude’ – see below.

STEP 2 – Provide details of your criminal record

As well as the visa application form, because of your arrest/conviction information, you will have to complete a Personal Data Sheet (VCU-01) where you will need to include details about your arrests/cautions/convictions. This form must be completed electronically.

If you are not sure of the details surrounding your arrests or conviction, you use the ACRO Police Certificate (see below) to help you.

STEP 3 – Provide official confirmation of your criminal record – Police certificate

Applicants applying for visas at the US Embassy are required to provide a police certificate from the Association of Chief Police Officers (ACPO) Criminal Records Office (ACRO) issued within 6 months of the date of the visa interview. Information on obtaining the police certificate is available here. You should obtain this certificate in advance on completing the Personal Data Sheet so that you are able to provide accurate information about each arrest/conviction.

The original police certificate will be retained on file by the Embassy. If you wish to have the original document returned to you on the day of the interview, you should take a photocopy of the document and a stamped, self-addressed envelope to the interview. Alternatively, additional copies of the certificate can be requested at the time of application.

What if I was convicted in the United States?

If you were arrested and/or convicted of an offence in the United States, you are required to obtain a court record from the court(s) in which you were tried. Such court records must show the nature of the offence(s) committed, the section(s) of law contravened and the actual penalty imposed. If the arrest did not result in a conviction, you may submit with your application the documents relating to the arrest. If you are no longer in possession of these documents, you may submit a sworn statement which gives the reason and location of the arrest, state and county. If you do not know the address of the court, the information is available online. Applicants are also required to obtain a police certificate from ACRO issued within 6 months of the visa interview.

What if I was convicted in a country other than the United States or the United Kingdom?

If you were arrested and/or convicted of an offence in another country, you are required to obtain a court record from the court(s) in which you were tried. Such court records must show the nature of the offence(s) committed, the section(s) of law contravened and the actual penalty imposed. If the arrest did not result in a conviction, you may submit with your application the documents relating to the arrest. If you are no longer in possession of these documents, you may submit a sworn statement which gives reason and location of the arrest, state and county. Applicants are also required to obtain a police certificate from ACRO issued within 6 months of the visa interview.

STEP 4 – Arrange an interview

Once you have completed the Visa application form, you need to request an appointment with the Visa Coordination Officer at the US Embassy in London. The Embassy does not accept walk-in applications.

The typical waiting time for an appointment is usually around 2 weeks. If you do not request an appointment with the Visa Coordination Officer you may be required to return to the Embassy at a later date if there is insufficient time for them to evaluate your case.

An appointment for an interview can be arranged on-line.

How much will it cost?

USA Visa timescales

 

After the interview, the typical wait time (working days) for a non-immigrant visa to be processed is 4 days. However, processing wait time does not include the time required for administrative processing for those applications which require additional processing. These procedures require additional time, and often apply to people with previous convictions.

When administrative processing is required, the timing will vary based on individual circumstances of each case. The embassy state that most administrative processing is resolved within 60 days of application but that you need to wait at least 90 days from the date of interview or submission of supplementary documents, whichever is later, before making status enquiries. In some cases, processing can extend to six months or longer. Processing wait time also does not include the time required to return the passport to you by the courier.

All passports will be returned to you by DX Secure, a courier agency contracted to the U.S. Embassy.  The fee for the courier service starts at £18.00; payable by credit or debit card.

Visa processing will not be completed on the day of the interview. Therefore it will not be possible to hand back your passport. Your passport will be handed to DX Secure once the Embassy have completed processing. A further four weeks should be allowed for the visa to be issued and the passport returned.

The processing times quoted are approximate and cannot be guaranteed. It is important that you keep this in mind when applying for the visa. It is not possible to speed up your case simply because you have not allowed sufficient time for your application to be processed.

Until this point, you are effectively barred from international travel, because your passport will be held at the embassy.

STEP 5 – Attend the interview

What do I need to do before the interview?

You need to gather the documents you need to bring to the interview, including:

  1. Confirmation page of the DS-160.
  2. The Non-immigrant Visa Interview Confirmation letter;
  3. A print out of the receipt for the MRV application fee which is sent together with the Non-immigrant Interview Confirmation Letter
  4. Your passport
  5. Any supporting material to help your case (see below)

How can I increase my chances of being successful?

State your circumstances and highlight the most important facts that support your case. Important factors include;

  1. family ties in the UK
  2. your reason for travel
  3. remorse regarding your convictions
  4. your change in character
  5. the financial ability to fund your stay
  6. having a paid job in the UK (it shows you have a strong reason to come back to the UK – consider taking a copy of your contract ora letter from your employer detailing the purpose of your visit).
  7. have as much information as possible to hand to the interviewer.

What happens on the day of the interview?

Only applicants with a scheduled appointment will be admitted into the Embassy. The exception being children under the age of 18 accompanied by a parent, translators and assistants for the disabled. If you require assistance, then you will need to give the name of the person who will accompany you to the operator when calling to schedule the appointment.

On the day of your interview, a set of your fingerprints will be electronically scanned. If you have a cut or blister on any of your fingers or thumbs, then your application will not be processed. You will be required to reschedule an appointment for a later date.

If you arrive at the Embassy more than 30 minutes after your scheduled appointment you will not be seen by a consular officer. You will be required to reschedule a new appointment for another day.

You should anticipate being at the Embassy for approximately two to three hours.

STEP 6 – Wait for a decision

How do I check the status of my application?

The direct link to a document which outlines the status of outstanding applications is here. In order to check the status of your application, you will require your Batch No (found on the 221(g) leaflet handed to you at the visa interview).

How do I use the DX Secure Tracking Service?

You can track the progress of your passport on-line by visiting www.thedx.co.uk/tracking once DX Secure are in receipt of it. You will need your invoice number and the postcode quoted on the invoice.

Your passport will not be handed to the courier company until the Visa section of the Embassy has processed your application. If your passport has not been handed to the courier company, you will receive a message saying “Sorry, this combination of tracking number and postcode do not correspond with our records. Please check and try again”.

How the Embassy makes their decision

Who is regarded as ineligible for a visa?

Those who are ineligible to travel under the VWP are generally regarded as being ineligible for a visa. However, the interview at the Embassy is an opportunity for your case to be assessed by a consular officer.

For information on those who are normally ineligible, see the Bureau of Consular Affairs website. This refers to section 212 of the Immigration and Nationality Act.

Who is likely to be granted a visa?

The consular officer will take certain important factors into consideration such as the egregiousness (offensiveness or seriousness) of the crime, the severity of the penalty, other criminal activity and how much time has elapsed between the time the offence was committed and the visa application. The emphasis of the interview from your position should be to persuade the interviewing officer that you are an upstanding member of society who would not engage in further criminal activity within the US.

Below you will find links to various guidelines by the US authorities for dealing with applications. However, these are very much discretionary, and do not amount to blanket policies, hence the reason for an interview at the US Embassy. The US Department of State Foreign Affairs Manual Volume 9 – Visas also contains some useful information about how the US make their decision as to whether to grant a visa, but very often it will be simply a case of making an application and awaiting the decision.

Generally inadmissible (1) – Crimes involving moral turpitude

The Immigration and Nationality Act states that, in general, anybody convicted of, or who admits to committing, or acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offence), is inadmissible.

There is an exception to this general inadmissibility if have committed a crime involving moral turpitude (see earlier section on what the term ‘moral turpitude’ means) where you only committed one crime and either;

  1. the crime was committed when you were under 18 years of age, and the crime was committed (and you were released from any prison sentence imposed for the crime) more than 5 years before the date of application for a visa, or
  2. the maximum penalty possible for the crime that you were convicted of did not exceed imprisonment for one year and you were not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

Generally inadmissible (2) – Crimes involving controlled substances

The Immigration and Nationality Act states that, in general, anybody convicted of an offence relating to a controlled substance is inadmissible.

“I received a caution for possession of a controlled substance (Class A) in 2009. By mid-2010, I had applied for and been granted a visa which was valid for 10 years. I went suited and booted and they just asked me whether I was still misusing drugs. I think possession is extremely minor in the spectrum of drugs-related offences”

Generally inadmissible (3) – Convicted of two or more offences

You are generally inadmissible if you have been convicted of 2 or more offences (other than purely political offences) , regardless of whether the conviction was in a single trial or whether the offences involved moral turpitude, for which the aggregate sentences to prison were 5 years or more.

What if I have drink related offences?

Anyone who has been arrested and convicted of a drink related offence may be referred to the Embassy’s panel physician for evaluation. You will be advised further on the day of the interview. As they cannot pre-adjudicate a visa application, they are unable to provide further guidance until you formally apply for the visa, at which time you will be given the opportunity to discuss your application with a Consular Officer.

The decision to issue a visa

What if I am found to be permanently ineligible?

If the US Embassy finds you permanently ineligible to receive a visa, it will mean a lifetime exclusion from the United States unless you obtain a waiver of ineligibility from the United States Department of Homeland Security Customs and Border Protection (DHSCBP).

The granting of a waiver by the US authorities is not automatic and is based on several factors, including nature of the crime committed, sentence served and the period of time which has elapsed since the conviction.

How do I get a waiver of ineligibility?

A waiver of ineligibility can issued by the consular officer. If a favourable recommendation is made to the DHSCBP for a waiver of the permanent ineligibility by the US Embassy, the application will take a minimum of eight weeks to process; some applications may take longer.

The Immigation and Nationality Act provides for waivers of ineligibility for visas and inadmissibility to the US for most non-immigrant visa classifications. The statute confers upon consular officers the discretionary function of recommending waivers of ineligibility to Department for Homeland Security, which has sole authority for granting or denying waivers. If a waiver is not recommended to DHS, a waiver may not be granted and the non-immigrant visa sought may not be issued.

In deciding whether or not to recommend a waiver, consular officers consider the following factors, amongst others;

  1. The recency and seriousness of the activity or condition resulting in your inadmissibility;
  2. The reasons for the proposed travel to the US; and
  3. Any effect, positive or negative, of the planned travel on US public interests.

How do I apply for a waiver of ineligibility?

If you are inadmissible due to having committed a crime involving moral turpitude, you are eligible to apply for a waiver of waiver of ineligibility under Section 212(h) of the Immigration and Nationality Act if you can establish that:

  1. a) The activities for which you are excluded occurred more than 15 years before the date of your application for a visa;
    b) Your admission to the US would not be contrary to the national welfare, safety, or security, and
    c) You have been rehabilitated; or.
  2. In certain cases involving close relatives (see below); or
  3. If you are a WAVA self-petitioner.

No waiver shall be provided to those who have been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

More information about waivers of ineligibility is available here.

Close relatives

If you are the spouse, parent, son, or daughter of a US citizen or an individual lawfully admitted for permanent residence in the United States, you may apply for a waiver if:

  1. It is established of the Secretary of Homeland Security‘s (DHS) satisfaction that denial of admission would result in extreme hardship to the US citizen or lawfully resident spouse, parent, son, or daughter; and
  2. The Secretary of Homeland Security (DHS) has consented to the application or reapplication for a visa for admission or adjustment of status to the United States.

What if I am refused a visa?

If the consular officer should find it necessary to deny the issuance of a visitor visa, and does not recommend a waiver of ineligibility, you may apply again if there is new evidence to overcome the basis for the refusal. In the absence of new evidence, consular officers are not obliged to re-examine such cases. For more information on visa refusals, click here.

If you feel that you omitted evidence material to the visa decision, you will need to reapply for a visa and appear at the Embassy in person.

 

Successful visa applications

“I had visa interview this morning and was granted” – Read a personal experience of the Embassy interview on our online magazine, theRecord.
“I tried again for my B2 Visa and was granted” – Read a personal experience on our online magazine, theRecord.
“I received a caution for possession of a controlled substance (Class A) in 2009. By mid-2010, I had applied for and been granted a visa which was valid for 10 years. I went suited and booted and they just asked me whether I was still misusing drugs. I think possession is extremely minor in the spectrum of drugs-related offences”
We get mixed reports from people about their experience of the US Visa process. It’s undoubtedly quite a time-consuming process, and can feel quite intrusive. There are also no clear guidelines available to the public on how the US Embassy will make their decision, so it’s hard to know whether you will be successful until you actually apply. From our experience, much will depend on the person that deals with your case, and how you present yourself at the interview you have at the Embassy. Ultimately, if you decide that you will need to apply for a Visa, you’ve got nothing to lose by applying. We certainly hear of many people who have been successful in getting a Visa, and these include a range of convictions and length of time ago.
There are more personal experiences of applying for a visa and travelling to the US on theRecord.

How to contact the US Embassy

Address: 24 Grosvenor Square, London, W1A 1AE (Mailing address)
Address: 24 Grosvenor Square, London, W1A 2LQ (Physical address)
Telephone: 020 7499 9000 (Switchboard)
Telephone: 09042 450100 (Operator Assisted Visa Information)
Website: london.usembassy.gov

Annex A – Crimes involving moral turpitude

The table below is taken from the US Department of State Foreign Affairs Manual Volume 9 – Visas 9 FAM 40.21(a) Notes, which is available to download.

Category

Crimes involving moral turpitude

Crimes not involving moral turpitude

Crimes Against Property Making false representation Damaging private property (where intent to damage not required)
Knowledge of such false representation by the perpetrator Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude)
Reliance on the false representation by the person defrauded Passing bad checks (where intent to defraud not required)
An intent to defraud Possessing stolen property (if guilty knowledge is not essential)
The actual act of committing fraud Joy riding (where the intention to take permanently not required)
Arson Juvenile delinquency
Blackmail
Burglary
Embezzlement
Extortion
False pretenses, Forgery, Larceny (grand or petty)
Fraud
Malicious destruction of property
Receiving stolen goods (with guilty knowledge)
Robbery
Theft (when it involves the intention of permanent taking)
Transporting stolen property (with guilty knowledge)
Crimes Committed Against Governmental Authority Bribery Black market violations
Counterfeiting Breach of the peace
Fraud against revenue or other government functions Carrying a concealed weapon
Mail fraud Desertion from the Armed Forces
Perjury Disorderly conduct
Harboring a fugitive from justice (with guilty knowledge) Drunk or reckless driving
Tax evasion (willful)
Drunkenness
Escape from prison
Failure to report for military induction
False statements (not amounting to perjury or involving fraud)
Firearm violations, Gambling violations
Immigration violations, Liquor violations
Loan sharking
Lottery violations
Possessing burglar tools (without intent to commit burglary)
Smuggling and customs violations (where intent to commit fraud is absent)
Tax evasion (without intent to defraud)
Vagrancy
Crimes Committed Against Person, Family Relationship, and Sexual Morality Abandonment of a minor child (if willful and resulting in the destitution of the child) Assault (simple) (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly)
Adultery (see INA 101** repealed by Public Law 97-116) Bastardy (i.e., the offence of begetting a bastard child)
Assault (this crime is broken down into several categories, which involve moral turpitude): Creating or maintaining a nuisance (where knowledge that premises were used for prostitution is not necessary)
Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm Fornication
Assault with a dangerous or deadly weapon Incest (when a result of a marital status prohibited by law)
Bigamy Involuntary manslaughter (when killing is not the result of recklessness)
Contributing to the delinquency of a minor Libel
Gross indecency Mailing an obscene letter
Incest (if the result of an improper sexual relationship) Mann Act violations (where coercion is not present)
Kidnapping Riot
Lewdness Suicide (attempted)
Manslaughter:
Voluntary
Involuntary (where the statute requires proof of recklessness, which is defined as the awareness and conscious disregard of a substantial and unjustified risk which constitutes a gross deviation from the standard that a reasonable person would observe in the situation. A conviction for the statutory offence of vehicular homicide or other involuntary manslaughter only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly)
Mayhem
Murder
Pandering
Prostitution
Rape (including “Statutory rape” by virtue of the victim’s age)
Sodomy
Attempts, Aiding and Abetting, Accessories and Conspiracy An attempt to commit a crime deemed to involve moral turpitude
Aiding and abetting in the commission of a crime deemed to involve moral turpitude
Being an accessory (before or after the fact) in the commission of a crime deemed to involve moral turpitude
Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude where the attempted crime would not itself constitute moral turpitude.

Annex B – US Code, Title 18, Part 1, Chapter 75, Section 1546

The below text is taken from the above legislation (available here) and details a potential offence under US Immigration laws for failing to disclose a criminal record when travelling to the US:

“Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or non-immigrant visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorised stay or employment in the United States, or utters, uses, attempts to use, possesses, obtains, accepts, or receives any such visa, permit, border crossing card, alien registration receipt card, or other document prescribed by statute or regulation for entry into or as evidence of authorised stay or employment in the United States, knowing it to be forged, counterfeited, altered, or falsely made, or to have been procured by means of any false claim or statement, or to have been otherwise procured by fraud or unlawfully obtained; or

Whoever, except under direction of the Attorney General or the Commissioner of the Immigration and Naturalization Service, or other proper officer, knowingly possesses any blank permit, or engraves, sells, brings into the United States, or has in his control or possession any plate in the likeness of a plate designed for the printing of permits, or makes any print, photograph, or impression in the likeness of any immigrant or non-immigrant visa, permit or other document required for entry into the United States, or has in his possession a distinctive paper which has been adopted by the Attorney General or the Commissioner of the Immigration and Naturalization Service for the printing of such visas, permits, or documents; or

Whoever, when applying for an immigrant or non-immigrant visa, permit, or other document required for entry into the United States, or for admission to the United States personates another, or falsely appears in the name of a deceased individual, or evades or attempts to evade the immigration laws by appearing under an assumed or fictitious name without disclosing his true identity, or sells or otherwise disposes of, or offers to sell or otherwise dispose of, or utters, such visa, permit, or other document, to any person not authorised by law to receive such document; or

Whoever knowingly makes under oath, or as permitted under penalty of perjury under section 1746 of title 28, United States Code, knowingly subscribes as true, any false statement with respect to a material fact in any application, affidavit, or other document required by the immigration laws or regulations prescribed thereunder, or knowingly presents any such application, affidavit, or other document which contains any such false statement or which fails to contain any reasonable basis in law or fact—

Shall be fined under this title or imprisoned not more than 25 years (if the offence was committed to facilitate an act of international terrorism (as defined in section 2331 of this title)), 20 years (if the offence was committed to facilitate a drug trafficking crime (as defined in section 929 (a) of this title)), 10 years (in the case of the first or second such offence, if the offence was not committed to facilitate such an act of international terrorism or a drug trafficking crime), or 15 years (in the case of any other offence), or both.”

Annex C – Section 212 of the Immigration and Nationality Act

The below is an extract of the Immigration and Nationality Act, available here. This sets out the general classes of people ineligible to receive visas, ineligible for admission, and the process of waivers of inadmissibility.

“(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime), or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement 2/ were 5 years or more is inadmissible.”

Is there anything else I should consider?

Useful materials

The US Embassy have a useful video which covers travelling to the US with arrests, cautions and convictions.

They have also stated in a letter that a Basic Disclosure (one that only shows unspent convictions) is not sufficient for proof of criminal convictions when applying for a visa to travel to the US. To view a copy of this letter, click here.

How would the US find out about my conviction?

It is a common question – “If I don’t tell them, how will they find out?”

The answer is, if you don’t tell them, they probably won’t.

We made a Freedom of Information Act request to the Home Office to clarify the situation. We asked….

I would like to ascertain the current procedure in place for information on the Police National Computer (or other criminal conviction-related information) to be shared with the United States.

I would like copies of any agreements that have been made to allow the United States access to information on the PNC (or access to other criminal conviction information.

On a similar note, I would like to ascertain, within the response to my request for the information above, if the United States authorities (whether the US Embassy in the UK, or the US Security department) have access to criminal conviction information of individuals who travel to the US without the individual concerned having previously applied for a Police Certificate under the Visa Scheme that is in place through US Embassy.

In short, I would like to know how the US authorities are able to ascertain whether an individual from the UK has a criminal record. This presumably relates to any agreements that are in place between the US authorities and the Home Office for the sharing of such information, and it is these agreements that I would like to receive copies of. “

They responded….

“Thank you for your e-mail of 25 June in which you asked for the current procedure in place for information on the Police National Computer (or other criminal conviction-related information) to be shared with the United States.

The Home Office does not hold a copy of any agreement by which information on the Police National Computer (or other criminal conviction related information) is shared with the United States. We are however aware of the general process by which information is shared. In deciding to release the information we have considered that the public interest in relations to the exemptions set out in Section 31(1)(a) [the prevention and detection of crime and 31(1)(b) [the apprehension and prosecution of offenders] of the Freedom of Information Act falls in favour of providing the information.

The public interest reason in favour of withholding the information is to make sure that that those who have committed crimes or who have otherwise come to the attention of the law enforcement authorities in each country are not aware that information is shared between the United States and the United Kingdom. The Public Interest Test arguments in favour of disclosure are that it is important for members of the public to be aware that information is shared between the two countries. By doing this the public can be re-assured that criminals are not able to escape justice by moving country, or be committing crimes in a country that is not that of their nationality. In this case the public interest argument in favour of withholding the information is outweighed by the arguments in favour of releasing the information.

The United States authorities do not have routine access to criminal record information held on the Police National Computer nor is the Police Certificate Process routine access to the PNC by the American Authorities. The Police Certificate arrangements are with the individual applicants who may or may not choose to subsequently share the content of the certificate with the US authorities. Further information on the ACRO Police Certificate Process can be found on the ACRO website at http://www.acpo.police.uk/certificates.asp and on the application form page of the same website at http://www.acpo.police.uk/Certificates/Application%20Form%208.doc

The United States authorities are able to seek details of any criminal convictions held on the Police National Computer on an individual request basis through Interpol channels.

Criminal conviction information on US Nationals who have been convicted of offences in England and Wales is extracted from the Police National Computer and sent, via Interpol channels to the United States in cases where there are fingerprints available and when the conviction is for imprisonment for 12 months or more or the offence is against national security or where sharing would be in the interests of public protection.”

To download a copy of the full response from the Home Office, click here.

 

More information

  1. For practical self-help information – More information on travelling abroad can be found here
  2. To read personal stories – You can read stories about travelling to the US on theRecord, our online magazine.
  3. To discuss this issue with others – Read and share your experiences on our online forum.

 

 

  • Cheeky Sean

    I am on the sex offenders’ register for something fairly minor (18 months, 9 in jail, no license after the 18 months). Is this one of the ‘watchlists’ that show up on passport checks? Or can I still keep shtum?

    Supposing I notify the authorities I’m leaving to Ireland and then go thence to the USA (so the UK authorities don’t forewarn the US)?

  • srbg1958

    Hi Sean, I am facing a slightly similar situation as you as 8 years ago I stupidly sent an email including Japanese art which depicted indecent images to someone I knew ( long story ) whose partner was a police officer. Subsequently I was arrested for sharing indecent images and received a police caution. I now wish to emigrate to the US to marry my fiancé who lives there. Just wondering how things are going for you.

  • Simon Willis

    I went down the visa route after I had received a simple caution for an image found on an old laptop, which the police couldn’t even date. The embassy didn’t care to listen about the circumstances of me receiving the caution and I was refused entry to the US on the spot. I now wish I had simply gone using the waiver program after reading information on this site.

  • Kriss

    Hey people, I’m on the SOR for indecent images.. Register for 15 years.. I’m ashamed of my past and doing my best to have a fresh start.
    My question is, can I/ people on the register go on holiday to the states??

  • Unknown1986

    Hi Guys
    My partner has a spent crim conviction at the end of April 2017. It was Theft from Asda. We are thinking of going Abroad in November but will have to pass US airports as we are transiting passengers. Whats the general rule of thumb here? would he apply for a VISA? It says ESTA is usually rejected on basis of theft from property, but this isnt a property. Any advice would be appreciated