Entering Usa With A Criminal Record

[hanniedooley18]

Hi, if I have been arrested and charged with burglary and came out of prison a year ago after 2 years in prison, can I go to the USA for pleasure purposes. I don't understand the crimes under moral turpitude. I was under 18 when put in prison however it hasn't been 5 years or more since I've been out. Please let me know ASAP as I am desperate to know whether I can go on holiday with my girlfriend and her family.

[rockyracoon]

If you have a criminal record you can't use the ESTA visa waiver to get into the States, you'll have to get an appointment with the embassy and hope they grant you a visa (don't book anything til you have this). I doubt you'd get one though. Burglary would come under moral turpitude I'd imagine.

Some people say just apply for the ESTA (denying your record) and go as the US authorities have no link to our criminal records databases. Not sure I'd chance it myself.

[rockyracoon]

Just to add, the process to get a Visa is quite long winded, you have to get your record from the police, make an expensive call the the US embassy to get an appointment, then go down there and wait to be seen. I understand decisions are not necessarily given there and then.

[hanniedooley18]

Thanks for your reply @rockyracoon, I did apply for a ESTA visa waiver and answered no to the moral turpitude question as I did not think burglary came under it, I was approved for the ESTA, and still am a few days down the line, however just found out that burglary is under moral turpitude... Will they find this out even though they've already given me a ESTA visa waiver?

[nailit]

I know someone who has recently returned from a honeymoon in the USA.
He had previously been to prison ..in the UK ..for putting a (fake) gun to someones head (drugs deal)
He simply never declared it and had a great time. Though he did admit that his anal nerve was twitching at customs.

[Bazile]

Look at the top post below , in related questions .

The decision is yours

[hanniedooley18]

Haha thanks for your answer @nailit, did he apply for a visa or just fill out an ESTA form?

[Buenchico]

The US Immigration and Nationality Act places an automatic bar on anyone who has committed an act of 'moral turpitude' (which includes all types of theft) from entering the country. Even taking a single sweet from a pick-&-mix display counts as 'moral turpitude'.

There's an exception made for people who committed a SINGLE act of moral turpitude before the age of 18 AND where the offence occurred (or any prison sentence ended) AT LEAST 5 YEARS before the date of a visa application.

So if you've ever been convicted of (or simply cautioned for) any other offence of moral turpitude (such as being cautioned for shoplifting when you were 10 years old) you will ALWAYS be subject to that automatic ban. If the burglary offence was the ONLY one of moral turpitude then the automatic ban ends FIVE YEARS from the date of your release from prison (not from the end of your actual sentence, as the licence period doesn't count).
http://www.state.gov/documents/organization/86942.pdf

So at moment (because less than 5 years has expired) you're still subject to the AUTOMATIC ban. If you were to apply for a visa the US Embassy MUST turn down your application because US law says so. However you then have the right to have your application forwarded to Washington as an 'application for a waiver of permanent ineligibility'. That process tough is EXTREMELY LENGTHY and you'd almost certainly be turned down anyway. (Someone posted on here to say that their partner had to wait 15 months to hear the result of his application, only to be rejected because of two convictions for driving without insurance).

So, if your burglary offence was the ONLY one of moral turpitude, there's no real point in applying for a visa until the 5 year period is up. (You won't then have to go through the long process of applying for a 'waiver of permanent ineligibility' but the US Embassy might still refuse you a visa anyway, purely on discretionary grounds. Your visa application will still involve getting hold of a copy of your police record and attending an interview at the US Embassy in London).

If you've been convicted of (or cautioned for) any other offence of moral turpitude then you'll ALWAYS have to go through the really long process of applying for a 'waiver of permanent ineligibility'.

In summary:
Until 5 years are up, forget it. You won't get a visa.

After 5 years are up (with no other offences of moral turpitude recorded against your name), allow several months BEFORE BOOKING ANY TRAVEL for your visa application and don't be surprised if you're turned down until perhaps 10 years have passed.

After 5 years are up (with one or more other offences of moral turpitude recorded), allow at least 18 months BEFORE BOOKING ANY TRAVEL and don't be surprised if you're NEVER able to obtain a visa.

[hanniedooley18]

Thanks for that @Buenchico, but I haven't applied for a visa, just an ESTA visa waiver, or does what you said count for that as well?

[Buenchico]

Anyone who has ever been convicted of an offence, admitted to one (as Nigella Lawson did when she admitted to drug-taking) or even simply arrested (even though totally innocent) is [according to the rules on the US Embassy website] ineligible to enter the USA under the Visa Waiver Program (i.e. with an ESTA).

That extremely wide ban (including anyone who has ever been arrested, for example) comes about from rules laid down by the Department of Homeland Security but which aren't actually written into US law.

However the ban on anyone with a conviction for (or who has admitted) moral turpitude IS WRITTEN INTO LAW. If you've got such a conviction (other than above in relation to a SINGLE conviction while still a minor) the Immigration and Nationality Act states that you're barred from entering the USA at all. (i.e. BOTH that you can't travel with an ESTA AND that you can't be given a visa).

[Buenchico]

PS: If you've falsely stated on an ESTA application form that you've not been convicted of an offence of moral turpitude (when you have) you risk, at the very least, a lifetime ban from entering the USA (with no right of appeal) and, if you're caught trying to enter the USA with an ESTA acquired that way, several years imprisonment for fraud.

As others have indicated, you MIGHT get away with but it's a very big risk!
(The US authorities have no direct access to UK criminal records; EU laws prohibit it. However it's clear that a great deal of information is passed to the USA under the guise of 'anti-terrorism (even when no risk of terrorism is involved). Further, the UK authorities will always hand over information about criminal records when a specific request is made in relation to a particular person. So, if the border authorities in the USA (who have a reputation of being some of the most unpleasant in the world) simply think that there's 'something not quite right' about you, they can ask the UK authorities what's known about you here.

[hanniedooley18]

Thank you @Buenchico, if I chance it do you reckon they'll find out or do they not have access to that kind of info??

[Buenchico]

I'm assuming that our posts crossed there because my last paragraph answers your question.

[hanniedooley18]

Yes they did cross, hmmm thank you so much for the info, what if I plead ignorance and acted as though I didn't realise that burglary came under moral turpitude ?

[Buenchico]

If you get caught they'll probably simply throw you out (although you might be locked up until there's a flight available to take you home). 'Pleading ignorance' certainly won't get you into the USA!

So you have to choose whether to contact the US Embassy and withdraw your ESTA application (telling them that you made a genuine mistake - which might earn you 'brownie points' if you apply for a visa at a future date) or simply take a chance. It's up to you!

[hanniedooley18]

Thank you so much @Buenchico, I am deciding to withdraw the ESTA!

[237SJ]

I keep meaning to ask Immigration about this every time I go into the States but I`m a bit concerned that they might think I am referring to myself! I think you have done the right thing in withdrawing. It`s best to apply through the proper channels. It doesn`t take long to get an interview at the Embassy - they normally have space within the month. They are very good, actually. I would give it a go and see what happens.

[Bazile]

//Even taking a single sweet from a pick-&-mix display counts as 'moral turpitude'. //

crikey

//So if you've ever been convicted of (or simply cautioned for) any other offence of moral turpitude (such as being cautioned for shoplifting when you were 10 years old) you will ALWAYS be subject to that automatic ban. If the burglary offence was the ONLY one of moral turpitude then the automatic ban ends FIVE YEARS from the date of your release from prison (not from the end of your actual sentence, as the licence period doesn't count). //

Does being cautioned means - cautioned by the police ?