CIMT? VWP? ESTA? OMG.

Travelling to the United States?  Citizens from the UK and other nations that participate in the Visa Waiver Program (VWP) are permitted to travel to the US without a visa. 

A precondition of entry under the VWP is to complete the Electronic System for Travel Authorization online entry clearance application (ESTA).  This web-based application is essentially an electronic form of the old I-94W, green entry card passengers completed upon entry to the US.  Aside from basic biographic data, it also seeks to identify individuals who may not be allowed to enter the US.  Historically, it asked the following question:

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 offenses 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? 

While controlled substance offenses are fairly self-explanatory, the concept of a "crime involving moral turpitude" caused a lot of problems.  In November 2014, the language with regard to CIMTs was changed to this:

2. 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 doesn't really help.

Depending on who you talk to, this question either asks, "Have you ever been arrested?" or it asks whether you have been arrested or convicted for a CIMT.

The all-inclusive interpretation is suggested by the US Embassy

Embassy YouTube Video-VWP

I think it's not so simple.

The phrasing of the question specifically relates to actual provisions of US immigration law relating to inadmissibility.  Thus, for example, where the video suggests that a conviction for drink driving should prompt a "yes" response to the question, current interpretation of US immigration law would suggest that it may not because it is not necessarily a CIMT, nor is it a controlled substance violation.  A drink driving conviction could, however, indicate a medical inadmissibility because of dangerous misuse of alcohol.

The above said, it is crucial for UK ESTA applicants with a criminal record to keep in mind that the Rehabilitation of Offenders Act does not apply to US visa and entry criteria.  In answering the question, ESTA applicants with an arrest record, would be well advised to seek legal advice from a US immigration lawyer.

Individuals presenting themselves for US admission or benefits must always represent themselves truthfully or risk being deemed inadmissible on account of fraud or wilful misrepresentation, in addition to their arrest record.  Applying for a visa can provide an element of reassurance that the matter has been vetted by a Consular Officer; however, visa applicants should be prepared to establish eligibility, lest they encounter a "214(b)" visa refusal because a Consular Officer finds that the individual "lacks sufficient ties outside the United States."

If you a planning to travel to the US and are unsure of how to complete the ESTA form or whether to apply for a visa, contact us.

Steven D. Heller
US Immigration Lawyer in the UK

SDH US Immigration Law, Ltd.
Castle Works
Westgate Street
Lewes, East Sussex
BN7 1YR
United Kingdom

+44 (0)1273 434609


info@us-visa.co.uk

Alternatively, you could just sing a bar of Alice's Restaurant

Have you ever been arrested?


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