If you are applying for admission to the United States of America and you have been convicted, cautioned or have made an admission to an offence of “moral turpitude” or a drugs offence, save for in limited circumstances related to permanent residency, or unless you are a head of state, cabinet member, ambassador or other high level government officer travelling on an A-1 or A-2 Visa, you will be automatically inadmissible to the United States of America.
The US Immigration and Nationality Act states the following with respect to criminal records:
§1182. Inadmissible aliens
(a) Classes of aliens ineligible for visas or admission
Except as otherwise provided in this chapter, aliens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States:
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of title 21),
The Act specifically exempts individuals with respect to offences of moral turpitude where the individual was a youth at the time of the offence, where only one offence was committed, and it occurred more than 5 years previously.
Also exempted are offences where the maximum penalty for an offence of moral turpitude does not exceed one year imprisonment, and the the actual sentence issued was not in excess of 6 months, whether suspended or not:
Clause (i)(I) shall not apply to an alien who committed only one crime if-
(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or
(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).
What is an Offence of Moral Turpitude?
An offence of moral turpitude is not clearly defined but generally they are offences where there is an “act of baseness, vileness, or . . . depravity in private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man”
Some offences clearly fall into this category, such as murder or rape, other offences such as ABH, Affray, GBH or battery may or may not be offences of moral turpitude depending on whether there was an intent or “evil” intent – most often in assault cases there will be a specific intent unless you can expressly prove your actions were reckless. Domestic ABH and GBH will always be considered offences of moral turpitude.
Child cruelty under Section 1 of the Children and Young Persons Act 1933 is a fairly common offence that does involve moral turpitude. Although it is is deemed to be an offence involving moral turpitude, it can be prosecuted or cautioned for relatively low level offending, such as leaving children unattended for a fairly brief period of time.
A migrant does not need to have been convicted of a crime, they can be excluded on the basis that they “admit having committed” a crime of moral turpitude or a drugs offence.
The general basis for what constitutes an admission to a criminal offence can be found in the Matter of K case, which states that prior to an admission being made the applicant must have had the offence properly explained to them, including all the essential elements, the applicant must admit all the factual elements which constitute the crime, and the admission must be clear, unqualified, freely given and unequivocal.
These elements align with the State Department’s belief that police cautions are admissions for the purposes of US immigration proceedings – the US Department of State in 2014 essentially stated that they would consider a police caution as being an admission to a criminal offence. Before being issued a police caution, if it has been administered correctly, a suspect will have had the allegation explained to them, they would need to freely admit the allegation, and their acceptance of the caution must be done with “informed consent”.
Other out of court disposals, such as community resolutions, also require an admission from a suspect, and so where one has been issued for an offence of moral turpitude or drugs, it is also possible a community resolution may result in an ineligibility finding.
Waiver of Ineligibility – Criminal Records
If you have been convicted or cautioned for an offence or moral turpitude, you may apply for a “waiver of ineligibility”.
Under section 212 of the Immigration and Nationality Act there are certain specific grounds where a waiver may be granted. Under Section 212(h) for example, if the allegation related to a possession of cannabis of 30 grammes or less, and where certain other conditions are met, then an ineligibility decision may be waived.
Generally, depending on the Visa that is being applied for, a waiver of ineligibility may be granted on a discretionary basis if it is considered to be in the “national interest to do so” (Section 212 (d), Immigration and Nationality Act ). A Waiver however can not be granted for a Green Card application if the offence relates to drugs, unless Section 212(h) applies (as above).
A decision will then be taken on the facts of your case, including looking at the nature of the offence, the time that has elapsed, your current situation, and various other factors.
What happens if you lie on a visa application?
Whilst it is possible to lie on a Visa application form, this is illegal, and can results in criminal proceedings and barring from travel to the US. In addition to the possible penalties for lying, US authorities have a means of checking UK citizens’ criminal records.
When going through Visa checks the United States will typically request that a UK national provide an ACRO Police Certificate. An ACRO Police Certificate will reveal, either directly or indirectly, a previous criminal record.
For details on what is disclosed on an ACRO Police Certificate please visit here: What is a Police Certificate? For further details about what criminal records information the United States can see, please visit here: Can United States of America Immigration Officials see my Criminal Record?
Deletion of Criminal Records from the PNC
If you have a police caution that is being disclosed or is causing “No Live Trace” to appear on your ACRO Police Certificate – then please get in touch.
If your caution is expunged (deleted) from the PNC then your police certificate will return to “No Trace”.
Along with applying for the deletion of police cautions, we are also able to assist with the deletion of PNC arrest records, community resolutions, harassment PINs, Penalty Notices for Disorder (PNDs), youth warnings and reprimands under the old youth warning/reprimand system, and local police records held on the Police National Database (PND).
Unfortunately we do not offer legal aid, but can usually offer fixed fees.