How to submit an ESTA application with a criminal record

Yes, you can obtain ESTA with pending charges. In the event that there is a criminal record and ESTA has been rejected, one can request a tourist visa to visit the United States. There are three types of tourist visas:

-       B-2 tourist visa;

-       B-2 tourist visa;

-       B-1 / B-2 tourist-commercial visa.

The process to obtain a tourist visa requires more time, it is longer and more costly, but at the same time it offers other advantages such as a longer period of validity and the possibility to stay in the country longer. For a complete comparison, you can visit the page I need an ESTA or a visa.

To obtain ESTA approval, the nature of the crime is very important, along with the age of the author of the crime at the time it happened and the date in which it took place. Regardless of where it happened in the world, an arrest, judicial caution or a conviction have to be declared on the ESTA application form, if pertinent, or on the visa application form to the United States.

The most frequent questions on the DS-160 application form for those with a non-terrorist criminal record are, for example:

“Have you ever been arrested or convicted for a crime that caused severe damages – that might be material – to another person or a governing body?

This question refers to convictions and arrests that cause severe damages to property, other people or governing authorities. Some examples that can be considered include but are not limited to the following:

• Crimes against the person such as murder, manslaughter, rape, gross indecency, gross aggression, kidnapping
• Crimes against property such as malicious fire, burglary, theft, robbery, fraud, receipt of stolen goods
• Crimes against a governing body such as fraud, tax evasion, corruption, false testimony

“Have you ever violated any law related to possession, use or distribution of illegal drugs?”

This question asks if a law related to the possession, use or distribution of illegal drugs has ever been broken. However, some inconsistencies can complicate the question for a candidate. For example, legal use of a controlled substance, such as medical marijuana in one’s country of origin, is still considered illegal from the United States federal law, despite several states having legalized its use. The candidates have to establish whether the use of an illegal drug has to be justified with the answer “YES”, which will probably cause the rejection of the ESTA. Ultimately, if you have not been convicted for a drug-related charge, the answer to the question is more about the honesty of the applicant because duty protection at the frontier (CBP) might not be able to verify the drug violation.

Obtaining an ESTA with a drug-related charge means answering “NO” to both questions relating pending charges and the use of illegal drugs. However, answering “NO” to having violated laws related to the possession, use or distribution of illegal drugs would be false if one has been convicted for activities declared in the question related to illegal drugs.

If the USA ESTA application is rejected, it is still possible to request a tourist visa B-2 or a business visa B-1 and have the possibility to clarify the circumstances regarding the possession or the use of drugs.

A single case of DUI (driving under the influence) is not considered to be a crime of moral obscenity according the rules of the United State. However, if the applicant is a regular drinker with several violations regarding alcoholism or if they have committed a crime due to alcoholism which has caused gross damages to other people or property or a governing body, then they might have to reply “YES” to the question about pending charges in the ESTA application.

If the assault has not caused serious injuries or damages to an individual or their property, it is possible that the applicant can reply “NO” to the question relating pending charges, given this scenario reflects the circumstances accurately.

A pending charge is, essentially, a conditional judicial charge that is executed once other crimes are committed. The answers of an ESTA applicant do not change with regards to the questions related to criminal history and the possession or use of drugs with pending charges. If the conviction of the applicant is not considered a crime of moral obscenity it is probable that a negative response is possible for the question on pending charges.

Laws on visas and immigration in the United States do not recognize the Rehabilitation of Offenders Act, so if a sentence was served in the United Kingdom or another country with similar agreements regarding convictions, the applicants have to consider their answers in the ESTA Form only if they have caused gross damages to a person, property, or a governing body.

No, to enter the United States you are required a visa USA or an ESTA approved or valid for the United States. In the majority of cases, it is not possible to get on board of a plane or a ship without an approved ESTA or visa. If you travel to the United States via land, you do not need an ESTA but when you pass the border you have to fill out the I-94 / I-94W form.

If it is discovered that you have lied on the ESTA application, this will be rejected within 72 hours after sending. Also, the ESTA will probably be rejected even if it has been previously approved. In many situations, ESTA might be approved and then rejected without notice or explanation. The office reserves its right to revoke the ESTA at any moment. ESTA applicants renounce the right to appeal against any denied travel authorization regarding the application to enter the United States, under the visa waiver program.

This question is for Australian citizens. A bond of good behavior is a non-custodial charge in which if you have not committed further crimes, the author of the crime gets a reduction of reclusion time after a certain period of time. ESTA applicants have to answer honestly regarding their pending charges, as well as regarding the possession and history of use of drugs. Having a bond of good behavior does not technically change the circumstances of an ESTA applicant, however, if an ESTA is rejected, having a bond of good behavior can contribute to establishing proof for a good moral character (GMC) when one requests a visa to travel to the United States.

Source: https://ceac.state.gov/genniv/

For each of the previous questions, one has to provide details regarding the personal situation and the reason why they have been rehabilitated after the sentences for any criminal activity correlated and deriving from the circumstances. One has to be honest and sincere in answering and has to support any claim with evidence. The activities that can be identified as part of rehabilitation do not include recurrent criminal records, getting a job, starting an activity, growing a family.

If the visa for the United States is rejected, a reason will be provided as to why and how immigration law has been applied to justify the rejection. Before another application, it is necessary to prepare evidence that sustains the appeal based on which immigration norms were previously grounds for rejection and why they are not to be considered anymore.

Getting an ESTA with pending charges requires different considerations based on the circumstances of the applicant. Answering to the best of one’s knowledge and truthfully is essential. If the ESTA is denied, you can still apply for a United States visa. For more information, you can consult our ESTA guide