Travelling to the US – Do I need a visa?

Aim of this page

This section looks at the Visa Waiver Program (VWP) and sets out how to determine whether your offence makes you eligible to travel to the US under the VWP or whether you’ll need to apply for a visa.

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

Why is this important?

For anybody considering travelling to the US, it’s important to know whether you would be eligible to travel under the Visa Waiver Program (VWP) or if you will need to apply for a visa through the US Embassy.

Generally, those travelling to the US for leisure or business stays of less than 90 days can travel under the VWP. However, if you’ve been arrested or convicted of certain offences, you may not be eligible.

The Visa Waiver Program (VWP) or visa?

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

You are able to travel under the VWP if you’ve 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 any of the questions asked during the ESTA process, you will be told that you are not eligible to travel under the VWP and will have to apply for a visa instead.

What questions are asked on the ESTA form?

The questions asked about criminal convictions on the ESTA website are as follows:

  1. 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?
  2. Have you ever violated any law related to possessing, using or distributing illegal drugs?
  3. Do you seek to engage in or have you ever engaged in terrorist activities, espionage, sabotage or genocide?
  4. Have you ever committed fraud or misrepresented yourself to obtain, or assist others to obtain, a visa or entry into the United States?

The ESTA form can be accessed online.

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 US 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 US 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 US 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 here.

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 questions, it states the following:

Not Eligible for Travel on Visa Waiver Program

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 US visa law. If you attempt to travel without a visa, you may be refused entry into the United States at your personal expense.”

The flow chart below may further help you to establish your eligibility to travel under the VWP.

Follow the flow chart to determine whether you can travel on an ESTA

 

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 but we would suggest that you work from the questions 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. You are potentially ineligible for a visa under Section 212(a)(2)(A)(i)(1) 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 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, contributing to the delinquency of a minor, murder, voluntary manslaughter, rape).

We have put together a list of offences detailing how they are categorised:

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 foreign conviction is a CIMT rendering an individual ineligible for a visa or inadmissible to the US is a complex question requiring careful legal analysis of the facts and the law. In important situations, you may benefit from seeking the advice of a specialist US immigration legal firm.

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).

Annex – Section 212 of the Immigration and Nationality Act

Below is an extract of the Immigration and Nationality Act. 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 were 5 years or more is inadmissible.

Discuss this with others

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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 experiences on our online forum
  4. Questions – If you have any questions about this, you can contact our helpline.

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This page was last fully reviewed and updated in July 2017. If you’ve spotted anything that needs updating, please let us know by emailing the details to advice@unlock.org.uk.

 

 

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