Can I Apply for ESTA If I Have a Criminal Record?

Travellers with a criminal record may wonder whether they can still enter the USA on an ESTA.

The answer is maybe, but it depends on a few things: the nature of the crime, the age at which the crime was committed and the date.

The nature of the crime is the real factor here. The USA does not have a blanket ban on issuing ESTAs to all people with any kind of criminal past. Some less serious demeanours won’t necessarily need to be declared, especially if they were a one off.

For example, there are a series of eligibility questions in the ESTA application that will determine whether an applicant’s criminal record needs to be declared or not.

The questions specifically referring to criminal background are:

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?

This is the question that will filter out convicts of serious crimes but likely let through the odd misdemeanour.

For example, a one off drink driving, assault or trespass offence that didn’t result in serious harm to any person or property will not need to be declared. On the other hand, if you’ve repeatedly been charged with drink driving or assault and have accrued multiple charges, the US might look at that differently.

However, crimes of moral turpitude will definitely need to be declared and will almost certainly get you denied.

Moral turpitude is a concept in US law and defines crimes that "gravely violate the sentiment or accepted standard of the community".

Examples include:

  • Crimes against the person such as murder, manslaughter, rape, kidnapping, serious assaults and gross indecency.
  • Crimes against the government such as forgery, tax evasion, bribery and perjury.
  • Crimes against property such as arson, burglary, theft and receiving stolen goods.

However, if you were under 18 when you committed the crime, it won’t be considered a crime of moral turpitude and you can answer ‘no’ to the above eligibility question.

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You may also be able to answer ‘no’ if more than 5 years have passed since your release from serving your sentence, or the maximum possible sentence for your crime was 12 months or less, and you received a sentence of 6 months or less.

However, as this is a grey area of interpretation, you may wish to seek legal advice before answering ‘no’ on your ESTA application.

Even if your ESTA is approved, if you apply for a visa in the future and border patrol gets access to your records and decides that your criminal history should have been declared on your ESTA application, you could be in for trouble.

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

This question leaves a small degree of room for interpretation, but on the whole, the USA is intolerant of any kind of drug use so answering ‘yes’ to this question will almost certainly get your ESTA denied.

The grey area relates to the use of drugs in countries where certain drugs are legal such as marijuana in the Netherlands. If you have used marijuana but not broken any laws in doing so, then you could, in theory, answer ‘no’ to this question and border patrol would have no way of knowing one way or the other.

Another example is the legal use of medical marijuana. Federal law would still require you answer ‘yes’ as medical marijuana has not been legalized in all US states. However, the question refers to whether you were violating any laws.

If you were not violating any laws at the time of your drug use and have no drug-related convictions then you could choose to answer ‘no’, and provided there were no other problems with your application, your ESTA would likely be approved.

Less specifically, the following two questions relate to further forms of criminal activity:

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 or others to obtain, or assist others to obtain, a visa or entry into the United States?

While these questions don’t relate to having a criminal record as such, answering yes to either will result in your ESTA being denied. Furthermore, the fraud and misrepresentation referred to is considered a crime by the USA, and if you’ve been deported from the USA in the past for any reason, you are unlikely to be approved for an ESTA.

If you have a criminal record that would require you to answer yes to any of the above four questions, you will most likely be denied an ESTA and will instead need to apply for a visa.

Applying for a visa will allow you to disclose your criminal background in more detail so that your case can be considered individually, and your background may be overlooked.

You will undergo an interview which will assess the risk that you pose with your criminal record to the US and its citizens. Consequently, even if you are ineligible for an ESTA, your criminal record may be deemed far enough in the past or of small enough consequence that you are deemed low risk and allowed to enter the country with a visa.

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FAQs

What do I do if my ESTA is denied because of a criminal conviction?

If your ESTA is denied because of a criminal conviction, you may still be able to receive either a tourist or business visa and enter the US that way. The process takes more time and requires that you attend an interview so plan ahead if you think you may need to take this route.

Can I get an ESTA with a criminal conviction?

Yes, provided the crime that you committed wasn’t a serious or repeated offence. If you feel comfortable that by answering ‘no’ to the eligibility questions you are not breaking any laws, you will most likely receive an ESTA.

However, border patrol can double-check your answers against their databases manually and look into your application in more detail if they are suspicious and the consequences could be serious. So, only answer ‘no’ if you are sure that the US government would agree with you over the severity of your crime.

Can I get an ESTA with a DUI?

If this is your only crime, then yes, an isolated drink driving conviction, if there was no harm to person or property, as a result, is unlikely to stop you from getting an ESTA.

Can I get an ESTA with an assault charge?

As with a single drink driving conviction, if the charge was an isolated incident and didn’t result in serious harm to person or property, then you could answer ‘no’ to the relevant eligibility question and still receive an ESTA.

Can I get an ESTA with a good behaviour bond?

Though having a good behaviour bond could help your visa application, it’s not going to help you with your ESTA application if you legally still have to answer ‘yes’ to one of the above eligibility questions.

Can I get an ESTA with a spent sentence?

Unlike countries such as the UK, the USA does not differentiate between spent sentences and criminal records.

So, if you have a criminal history that involved crimes of moral turpitude, regardless of how long ago they occurred or whether your home country still recognizes them, you will need to answer ‘yes’ to the relevant eligibility question and will most likely be denied an ESTA.

Can I get an ESTA with a suspended sentence?

Again, this depends on the nature of the crimes committed. It comes down to the severity of the crime and whether it would be classified as a crime of moral turpitude by the US government.

The eligibility questions refer to convictions rather than whether or not you have served your sentence. If you were convicted of a crime of moral turpitude, you will likely not receive an ESTA, regardless of whether your sentence has been suspended.

Summary

Getting into America with a criminal record is possible provided you go through the right channels, and provided the crime isn’t too serious. It is recommended that anybody with a criminal record not attempt to enter the US with an ESTA and rather go through the visa application process instead.

However, depending on the severity of your crime, you can decide whether you want to risk applying for an ESTA if you are comfortable that you are not breaking any laws by answering ‘no’ to the eligibility questions. Note that you are legally required to declare all criminal records, even if your home country has granted you the right to avoid disclosure of a particular crime.

It is important that these questions are answered honestly, as border protection will likely investigate and any dishonestly could bar your from ever being able to enter the country in the future, whether by visa or ESTA.