Can I get a Visa to USA if I have a Criminal Record?


I am often asked whether a criminal conviction will lead to an application for a travel visa to the United States being refused.

The answer is: it normally won’t provided that you pass the requirements of the ‘ESTA’; or Electronic System for Travel Authorization.

What is the ESTA?

ESTA is a program implemented by the United States Department of Homeland Security to facilitate efficient and effective screening of travellers to the United States.

If an applicant:

  • holds a valid passport from from an eligible country (including Australia), and
  • will be in the United States for 90 days or less, and
  • is travelling for business or leisure purposes

an online application can be made for travel approval to the United States under the ESTA program.

The full list of ‘eligible countries’ is extracted below.

ESTA provides instant advice as to whether travel to the USA is approved, refused or if further information is required.

The application currently costs $14 if successful or $4 if refused.

The applicant is required to:

  • fill in his or her personal details including citizenship and passport number,
  • advise of the proposed address while in the United States, and
  • answer the following list of questions:

A) Do you have a communicable disease; physical or mental disorder; or are you a drug abuser or addict?

B) Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offences for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities?

C) Have you ever been or are you now involved in espionage or sabotage; or in terrorist activities; or genocide; or between 1933 and 1945 were you involved, in any way, in persecutions associated with Nazi Germany or its allies?

D) Are you seeking to work in the U.S.; or have you ever been excluded and deported; or been previously removed from the United States or procured or attempted to procure a visa or entry into the U.S. by fraud or misrepresentation?

E) Have you ever detained, retained or withheld custody of a child from a U.S. citizen granted custody of the child?

F) Have you ever been denied a U.S. visa or entry into the U.S. or had a U.S. visa cancelled?

Definitions are extracted below.

The main aim is to ensure that the health, safety and economy of the United States is protected by refusing entry to persons who have a contagious disease / infection, who want to stay for a prologued period or for employment purposes or who pose a physical risk due to drug use or supply, serious criminal conduct, spy activity, terrorism or links to genocide.

Travel authorisation will instantly be approved in writing if the answer to all questions is ‘no’.

However, that approval is ultimately subject to Customs and Border Protection checks and final determinations.

If the answer to any question is ‘no’, the authorisation will not be approved and further information will be required.

So the answer to the question: Can I get a visa to USA if I have a criminal record? is Yes, provided that you pass the ESTA requirements.

_____________________

Definitions:

‘Communicable diseases’ include: Chancroid, Gonorrhea, Granuloma inguinale, Leprosy, infectious Lymphogranuloma venereum, infectious stage Syphilis and active Tuberculosis.

‘Physical or mental disorder’ is defined as when:

(a) You currently have a physical or mental disorder and a history of behaviour associated with the disorder that may pose or has posed a threat to your property, safety or welfare or that of others; or

(b) You had a physical or mental disorder and a history of behaviour associated with the disorder that has posed a threat to your property, safety or welfare or that of others and the behavior is likely to recur or lead to other harmful behaviour. _____________________

Eligible countries are:

Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia , Liechtenstein, Lithuania, Luxembourg, Monaco, Netherlands, New Zealand, Norway, Portugal, Malta, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland and the United Kingdom.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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