Visiting the US When You Have a Prior Criminal Past – Can all be forgiven?

Lots of people call our office who have prior arrests, cautions or convictions who wish to visit the US. Usually, if someone from the UK other European country wants to visit the US for a short business trip or holiday, they visit visa free under Visa Waiver Program for up to 90 days but, if they have any arrests, cautions or convictions, they should apply for a B-1/B-2 visa at a US consular post outside the US and request a waiver of inadmissibility.

A visa applicant must first meet the basic requirements for the visa and then look at whether a person is admissible to the US.

B-1/B-2 Visitor Visa – Requirements:

  1. That the activity they wish to engage in the US is allowed under the B-1/B-2 visa which includes short business trips for business meetings, attending conferences or trade shows or for tourism AND
  2. That the person has substantial ties to the country in which they live and have sufficient funds to ensure that they will only visit the US for a short period and will not overstay or work illegally in the US.

Waiver of Inadmissibility:

Assuming the applicant meets the requirements for the B-1/B-2 Visitor visa, then the Consular Officer must determine whether the applicant is admissible to the US. If the Consular Officer finds that the applicant isn’t admissible, he or she may recommend that the applicant be granted a waiver of inadmissibility. A person may be inadmissible to the US if they have certain convictions, admitted drug abuser or if they have US immigration violations.

If the visa applicant has a conviction for a crime involving moral turpitude or a “CIMT” or a drugs offence, then they are inadmissible to the US, unless the conviction is a juvenile offence or falls under the petty offence exception. CIMTs are usually fraud, theft or violent crimes. It also doesn’t matter when the conviction occurred but it does help if more than five years has passed from when the visa applicant was convicted and/or released from jail. In the UK there is the Rehabilitation of Offenders’ Act which does not apply to US immigration law.

A person may also be found inadmissible to the US if they have admitted to abusing controlled substances. This admission may take place before a US government officer or medical examiner or possibly in the public domain.

Recommended for a Temporary Visa Waiver:

If a person has a prior conviction for a CIMT or drug offence, then the Consular Officer must determine whether he or she should recommend that the applicant be granted a waiver of inadmissibility. The Consular Officer who works for the US Department of State does not have the power to make the final decision to grant a waiver of inadmissibility. Instead, the US Department of Homeland Security Admissibility Review Officer makes the final decision. This office is based in Washington DC and it usually takes 4-6 months for the final decision to be made.