The U.S. Department of State have strict guidelines and policies regarding criminal arrests or convictions relating to foreign nationals wanting to enter the United States.
Any person/s that applies to enter the United States is reviewed upon application to deem if they are admissible or inadmissible to the U.S. The determination of admissibility is based on current statutes and policies that determine if a person/s is legally allowed to enter the United States, and the specific reasons that grants them permission to enter.
The language used can be confusing for those not familiar with it;
- Admissible or admissibility pertains to you being granted permission and are considered eligible to enter the U.S.
- Inadmissible or inadmissibility pertains to you not being granted permission and are considered ineligible to enter into the U.S.
Therefore, when we discuss waivers of inadmissibility, we are referring to petitioning the U.S. Government a case that results in a waiver of the reason/s that deemed you inadmissible, and has denied you permission to enter to the United States.
What Do I Need to Be Careful of When It Comes to the U.S. and Criminal History?
It is important to understand that having any past criminal history, either from an arrest without charges through to a criminal conviction in court, will need to be reviewed when you are considering traveling, applying for a visa or considering permanent relocation to the U.S.
U.S. Immigration Law creates many traps for the unwary when it comes to anything deemed criminal history, and it is important to note that the policies do not define criminal history through convictions in isolation. Previous arrests or charges, even without a conviction can affect your eligibility to apply for a US non-immigrant visa, U.S. Green Card or enter the US under the Visa Waiver Program (ESTA).
Past criminal history should be reviewed before any potential travel or visa application to the U.S.
While a specific criminal issue may not have any immigration consequences, it is important to make sure all matters are disclosed as legally required during a visa application, an ESTA application for the Visa Waiver Program (VWP), or if planning future immigration to the U.S.
What Are the Potential Immigration Consequences?
The U.S. has numerous grounds of inadmissibility that directly relate to previous criminal issues. These include:
- Convictions or admissions to crimes involving moral turpitude;
- Convictions or admissions to the violation of a law related to a controlled substance (illicit drugs) as defined by the U.S. federal law, including cannabis (marijuana);
- Multiple criminal convictions in which the perpetrator was sentenced to at least five years incarceration.
There are also other criminal related groups that may not relate to previous criminal history, but nevertheless may be reviewed in an immigration case based on factual circumstances, including:
- Involvement with controlled substance trafficking;
- National security and terrorism;
- Involvement in money laundering;
- Involvement with prostitution or commercialised vice;
- Involvement with human trafficking;
There is significant potential for other immigration consequences related to any criminal history, arrest or conviction.
For example, a drug arrest or drunk driving offence may lead to a review of medical inadmissibility to the U.S. or the failure to properly disclose a criminal issue in a previous visa application can amount to willful misrepresentation, or be considered fraud and inadmissibility and travel bans can be the result of a failure to disclose.
It is important that any criminal matter should be reviewed carefully with a U.S. Attorney that specializes in U.S. Immigration Law given the possibility for potential ongoing effects for U.S. visa applications and travel.
This includes any criminal matter that occurred anywhere, worldwide. It is important not to assume something may not have any consequences as it relates to the U.S. Planning in advance can prevent ruined travel, visa or immigration denials, or being refused entry at the U.S. border by CBA, detained and returned to your country of origin.
What Happens If I Am Inadmissible or Possibly Inadmissible to the United States?
Upon a finding of inadmissibility, a foreign national will not be able to receive a visa and/or enter the United States under U.S. Immigration Law. Entering the US when you may be inadmissible can have very serious long-term consequences.
The most common criminal inadmissibility grounds, including crimes involving moral turpitude and controlled substance offenses, create harsh life-long inadmissibility from the U.S. However, other grounds (for example prostitution) relate to a ten-year period of possible exclusion.
If I Am Inadmissible, Is There Any Way for Me to Still Receive a Visa or Enter the United States?
Yes. There is the potential for certain grounds of inadmissibility to be waived on a case-by-case basis, or permanently depending on the type of visa you may be applying for, or intended travel purpose.
There are different rules related to travel, non-immigrant and immigrant visas for permanent residency in the U.S. however, depending on the inadmissibility and type of visa sought, it is possible for there to be no relief under standing provisions of U.S. immigration law to receive a visa or travel permission.
To gain entry into the U.S. under these circumstances requires a waiver of inadmissibility.
What is a Waiver of Inadmissibility?
It is an application for legal entry to the U.S. made by an individual who is otherwise inadmissible on one or more grounds. Effectively you are petitioning the United States Government to allow you entry into the U.S. when you do not meet the entry requirements under standard criteria.
With non-immigrant visas, there is potential to receive temporary entry to the US for a greater number of grounds of inadmissibility to the U.S.
In these circumstances, a person may receive a temporary waiver related to a particular visa application under Immigration and Nationality Act (INA) 212(d)(3). For example, an inadmissibility finding for a controlled substance offence related to a conviction of possession of MDMA (ecstasy) could potentially be waived under that section for a visitor visa.
With immigrant visas, there are potential waivers available for certain criminal inadmissibility grounds permanently under INA 212(h). 212(h) identifies certain criminal grounds that allow for a waiver application, including crimes of moral turpitude, prostitution, and a single offence of possession of 30 grams or less of cannabis (marijuana). Also, 212(h) outlines precisely under what circumstances a matter can be waived including extreme hardship to a qualifying U.S. citizen or lawful permanent resident relative. With the same example above of an inadmissibility finding for a controlled substance offence related to a conviction of possession of MDMA (ecstasy), this inadmissibility cannot be waived under INA 212(h) related to any immigrant visa. It does not meet one of the statutory reasons under 212(h) that the offence can be waived related to an immigrant visa.
If traveling on the Visa Waiver Program (ESTA) there is no facility to enter the U.S. if you declare a criminal arrest or conviction under ESTA, should you be required to do so. In these circumstance you will usually apply for a visitor visa that will allow you to enter to the United States, usually a B-2 Tourist Visa or a B-1 Business Visa depending on your circumstances.
In a situation where you are unsure, it is important to discuss your situation with an experienced US Immigration Lawyer who can advise how to proceed in relation to your specific circumstances, before submitting an application through ESTA.
Is an Australian Section 10 with No Conviction Recorded an Issue When Entering the United States on ESTA?
It depends on what the arrest was for. Even with no conviction recorded and a dismissal motioned, it is still an arrest and may be considered a conviction under U.S. Immigration Law. Drug possessions, arrests or charges depending on the circumstances can deem you inadmissible to the U.S. even if you were not convicted, and as such you will not be able to use ESTA to travel to the United States.
Are There Inadmissibility Grounds That Can Not Be Waived?
Yes. In addition to any activity that can be attributed as a threat to national security, the following have been identified by the United States Citizenship and Immigration Services (USCIS) as grounds that can not be waived;
- Controlled Substance Traffickers
- Espionage; Sabotage; Illegal Export of Goods, Technology, or Sensitive Information; Unlawful Overthrow or Opposition to U.S. Government
- Terrorist Activities
- Adverse Foreign Policy Impact
- Participants in Nazi Persecutions or Genocide
The U.S. Department of State and Customs and Border Protection have extensive networks of information available to them in relation to foreign nationals and criminal history. Worldwide Migration Partners has significant experience with the potential immigration consequences of criminal matters and specialized case managers that routinely deal with assisting in planning non-immigrant, immigrant and travel purposes that require criminal waivers or further representation before the U.S. Department of State.
Cases requiring a waiver of inadmissibility are complex and you should seek legal advice from a qualified immigration attorney. Worldwide Migration Partners are in a unique position where we have understand and experience in both the Australian and U.S. Law and Immigration systems.
About The Author
Melissa Vincenty is a U.S. Attorney, a registered Australian Migration Agent and the founder and managing director of Worldwide Migration Partners. Melissa has over 25 years of experience in U.S. Immigration Law, including practising at the world’s largest U.S. Immigration Firm and more than 15 years as a Country Specialist (China and Tibet) for Amnesty International USA.
Disclaimer: The information in this article is general in nature, may not, and is not intended to constitute the most up-to-date legal or other information, and is for general informational purposes only. It does not represent legal advice specific to any individual/s situation, and should not be relied on as such. Please contact us for a consultation for legal advice for your individual circumstances.