Myths Associated with Arrests, Cautions and Convictions

By Orlando Ortega-Medina, Esq.

Myth 1: “Our employee has a criminal record. He is therefore required to apply for a visa before travelling to the United States.”

The Reality:  It depends on the record.

This myth most commonly arises in relation to Question B on the Electronic System for Travel Authorization (ESTA) required to travel to the United States.  Question B asks as follows:

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? 

When one answers “yes” to Question B, US Customs and Border Protection reviews the application and determines whether travel will be authorised or whether the traveller must apply for a visa at the United States Embassy or Consulate abroad before travelling to the United States.

The portion of the question that generally causes confusion is whether the arrest or conviction was for a crime involving moral turpitude (CIMT).

Common law in the United States defines moral turpitude ambiguously as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”  Further, the punishment imposed does not shed any light as to the presence or absence of moral turpitude.  For example, some crimes punishable by only a fine may be considered crimes involving moral turpitude, whilst other crimes generally considered by the general public to be serious are not.

The determination as to whether a “foreign arrest or conviction” involves moral turpitude requires a comparison of the subject criminal record against both the equivalent United States federal or state criminal statutes and the relevant United States immigration laws.

Our firm recommends that you consult with a US-qualified business immigration lawyer before instructing the subject employee to complete the ESTA questionnaire or contacting the United States Embassy or Consulate to schedule an appointment for a visa application.  The United States Embassy or Consulate does not advise in advance as to whether it will consider a particular arrest or conviction to be a CIMT.  Only a qualified business immigration lawyer with substantial experience dealing with issues of criminal inadmissibility will be able to provide insight into this in advance of the consular appointment, and will be able to assess the likelihood of success in such an application.

It is quite common for an individual that legally could have answered “no” to Question B, to nevertheless book a visa interview, either because he is uncertain about the definition of CIMT, or because he directly consults with the DOS call centre and is instructed to do so.  At the visa interview, even if the attending officer is unable to find that the arrest, caution or conviction is a CIMT, she may nevertheless deny the visa application on other grounds, such as “medical inadmissibility” in the case of a Drink-Drive arrest, or for the less comprehensible “insufficient ties outside of the United States.” A visa denial on these grounds will render the individual who would have otherwise received ESTA approval unable to travel on the Visa Waiver Program.  Furthermore, the visa denial remains on one’s DOS record for life and is quite difficult to overcome in a future application, as embassy officials typically defer to the previous denial unless there has been a material change of circumstances.

Myth 2:  “Our employee’s criminal conviction is now spent (or expunged) so he does not need to disclose it to the US immigration service or to the Embassy of the United States.”

The Reality:  The United States government does not recognise the concept of spent convictions.

An arrest or conviction that falls under a category requiring disclosure must be revealed, regardless of how long ago it occurred and regardless of whether it has been removed from ones record.