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Criminal Records and Travelling to the United States


Travelling to the U.S.

If you are intending on travelling to the United States from Australia, and you are concerned about your criminal record or pending court matter(s), the following information may be relevant for you. It is worth noting that if you are applying for a visa to the U.S., extensive checks are done prior to your entry, so you must fully disclose your criminal history, to ensure that you are dealt with fairly.

Criminal Grounds of Inadmissibility

Pursuant to section 212 of the Immigration and Naionality Act (U.S.) there are a number of criminal offences identified that if commited, would make the applicant inadmissable for entry. Some of which include (but not limited to):

  • a crime involving moral turpitude (crimes that are considered depraved and immoral such as murder, rape, theft and fraud);
  • conviction for two or more criminal offences (regardless if they were commited at different times);
  • drug trafficking;
  • prostitution;
  • human trafficking;
  • money laundering; and
  • terrorist activities.

The Visa Waiver Program

The Visa Waiver Program (“VWP”) allows citizens of certain participating countries to travel to the United States for tourism or business up to 90 days without obtaining a visa. Not all countries participate in the VWP, and not all travellers from VWP countries are eligible to use the program. Travellers must have a valid Electronic System for Travel Authorisation (“ESTA”) to be eligible for the VWP.

Australia is a member of the VWP ratifed countires, however, that doesn’t mean that all Australian citizens are eligible to enter the U.S. automatically. Any convictions, charges that have not yet come before a court for sentence, or even a previously refused visa, may make you ineligible to travel on the VWP.

What if I have been arrested/convicted for a criminal offence in the past?

The U.S. does not recognise spent convictions (convictions that occurred more than 10 years ago) in the same way other counties do, which makes the U.S. one of the more difficult countries to enter. Practically speaking, it means that you must disclose any and all criminal offences on your record, irrespective of the seriousness of the offence or if it is considered spent. Travellers with minor traffic offenses, which did not result in an arrest and/or conviction for the offense (such as speeding tickets) may travel visa free, provided there are no other factors that would make the ineligible.

ESTA will assess your eligibility for travel to the United States under the Visa Waiver Program. The assessment includes questions regarding previous arrests and/or convictions.

If you have been arrested for, or charged with a crime, including offences involving the use of a controlled substance, you may require a U.S. visa and, in some cases, a waiver of ineligibility. If you are ineligible for the VWP because of your criminal history, you will need to contact the U.S. Consulate to investigate your options and assess your eligibility for entry.

What if I have recently been charged or convicted of an offence?

If you have been recently charged with a driving or criminal offence, or you have recently been convicted of an offence, please contact Armstrong Legal for an obligation free consultation to explore your options and received professional advice on 1300 168 676.

Image Credit – stillfx © 123RF.com

Written by Tyson Brown on January 10, 2018

Tyson has a down to earth, straightforward approach to life and the law, one which is well received by all who meet him. Tyson has the ability to relate to all clients on a personal level, having spent many years prior to his legal career in customer service and hospitality.


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