Travelling to the US – Travelling without a visa

Aim of this page

This section looks at travelling to the US without a visa if you have a criminal record.

It forms part of our information on travelling to the US including:

Why is this important

In 2015, over 4.9 million people visited the US from the UK. A significant number of these will have some form of criminal record. Many people successfully apply for a visa through the US Embassy but many will simply choose to travel under the Visa Waiver Program (VWP) without declaring their criminal record.

It’s important to be clear about the possible consequences of choosing not to disclose your conviction.

The Visa Waiver Program (VWP)

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 the Electronic System for Travel Authorisation (ESTA) for visa-free travel to the United States.

For more details on the VWP, and those who cannot travel under it, 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 arrangements provide exemptions, which the UK does).
  • The purpose of your stay in the United States is 90 days or less for tourism or business.
  • If arriving by air or sea, you are travelling on an approved carrier and have a return trip ticket to any foreign destinations.
  • 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.

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 VWP. Those who do not meet these guidelines must apply for a visa.

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. The ESTA process asks questions regarding criminal convictions. If you answer ‘yes’ to the questions that are asked during the ESTA process (see here for further information) regarding convictions, you will be told that you are not eligible to travel under the VWP and will instead have to apply for a visa.

What can you do if you’re ineligible to travel under the Visa Waiver Program (VWP)?

If your criminal record means that you are ineligible to travel under the Visa Waiver Program (VWP), then there are two options:

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

Many people who contact Unlock ask “If I don’t declare my conviction, is there any way they can find out?”. The answer is, if you don’t tell the US about your criminal record, they probably won’t find out.

Lying on the ESTA form

Access to the UK Police National Computer (PNC)

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 done 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 Visa Waiver Program and as a result have to make a false declaration to the questions asked as part of the Electronic System for Travel Authorisation (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. Further details can be found below.

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.

Taking the decision to lie can make it more difficult to apply for a visa in the future as any visa application will highlight the fact that you’ve travelled ‘illegally’ in the past (this would presumably throw into doubt any claim you make to be a law-abiding citizen). If you think that there’s a chance that you may want to live or work in the US in the future, then lying on the ESTA form may not be the right decision for you.

How would the US find out about a conviction?

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 the 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 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) 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 relation 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 or providing the information.

The public interest reason in favour of withholding the information is to make sure 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 by 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://acpo.police.uk/certificates.asp and on the application form page of the same website at http://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 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 interest of pubic protection.”

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

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

The text below 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 office, 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.”

Discuss this with others

Read and share your experiences on our online forum.

Key sections include:

Useful links

Below you will find links to useful websites relating to this page. More specific details (including addresses and telephone numbers) of some of the organisations listed below can be found here.

More information

  1. For practical information – More information on travelling to the US
  2. To read personal stories – You can read stories about this posted on theRecord, our online magazine under the tag of travelling to the USA
  3. To discuss this with others – Read and share your experience on our online forum
  4. Questions – If you have any questions about this you can contact our helpline.

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  2. Discuss your views and experiences on our online forum
  3. Share your story by contributing to our online magazine, theRecord.
This page was last fully reviewed and updated in August 2017. If you’ve spotted something that needs updating, please let us know by emailing the details to advice@unlock.org.uk.

 

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