Ruth Haines
US airport immigration authorities conduct thorough background checks and can access various international criminal databases. Customs officers may stop people at the border to determine whether they are admissible to the United States, and they may search people's belongings for contraband. US immigration law is not always straightforward, and applications are subject to considerable discretion on the part of visa adjudicators. However, there are three types of criminal convictions that will make a person inadmissible, meaning they cannot receive a green card: aggravated felonies, crimes of moral turpitude, and drug crimes.
| Characteristics | Values |
|---|---|
| Can US airport immigration see criminal records? | US immigration authorities conduct thorough background checks and can access various international criminal databases. Customs officers have the authority to ask about immigration status to determine whether an individual has the right to enter the country. |
| What happens if I lie about my criminal record? | Lying about your criminal record on the ESTA form or visa application is considered immigration fraud and can lead to severe legal consequences. These may include being banned from entering the US, fines, and even potential imprisonment. |
| What are the visa ineligibilities in the context of criminality? | You have been convicted of a crime involving moral turpitude, a drug violation, or two or more criminal convictions for which the total sentence of confinement was five years or more. |
| What is the process to obtain a criminal record check? | The Criminal Justice Information Services (CJIS) Division of the Federal Bureau of Investigation (FBI) is responsible for criminal justice information. Individuals can request their FBI Identification Record or proof of no record by submitting a written request to the CJIS Division with proof of identity. |
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What You'll Learn
Criminal record checks
US immigration authorities conduct thorough background checks and can access various international criminal databases. Customs officers have the authority to ask about your immigration status to determine whether you have the right to enter the country. US immigration law in this area is not always straightforward, and applications are subject to considerable discretion on the part of visa adjudicators.
ESTA
If you are travelling under the Visa Waiver Program (VWP), you must complete an ESTA form. If your ESTA application is approved, you will not need to apply for a US visa. If you are denied ESTA, you will not be able to travel visa-free and will need to consider alternative options. Official guidance from the US authorities specifically recommends travellers do not attempt to travel visa-free under the VWP if they "have been arrested, even if the arrest did not result in a criminal conviction" and "have a criminal record". Lying on your ESTA application is considered a criminal offence under US law and can lead to severe consequences, including being banned from entering the US, fines, and imprisonment.
Visas
All US visa applications ask for details of any criminal records to be declared. Regardless of when a conviction occurred, you must disclose all such matters fully, as even spent convictions can impact your eligibility for admission into the US. US Citizenship and Immigration Services (USCIS) will check for criminal records for both the US citizen or green card holder sponsoring a family member, and the family member applying to receive a green card. When applying for a green card, USCIS wants to know about every interaction you've ever had with law enforcement, both in your home country and in the US. The only exception is traffic violations—minor issues need not be mentioned.
Waivers
A waiver is a formal request to overcome the grounds of inadmissibility based on specific circumstances. For example, you may wish to present your rehabilitation efforts and highlight the passage of time to the US immigration authorities. Erasure of a caution or conviction may also help support your application. Applications for waivers of inadmissibility are complex, and it is recommended that you take legal advice.
If you need to prove that you lack a criminal record, you can request an FBI Identification Record or proof that no record exists. You may get a copy of your record by submitting a written request to the Criminal Justice Information Services (CJIS) Division of the FBI. The request must include proof of identity, your name, date and place of birth, and a set of rolled-inked fingerprints. If there is no criminal record, they will provide a report reflecting this fact. You may also submit a request through an FBI-approved channeler, a private business that has contracted with the FBI.
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ESTA and visa applications
The US authorities conduct thorough background checks on all ESTA and visa applicants, and they can access various international criminal databases. US Customs and Border Protection (CBP) has access to international databases and extensive screening tools that can reveal inconsistencies in the information provided.
The ESTA online application form includes eligibility questions to determine whether you can travel visa-free. These include questions about criminal convictions, such as whether you have ever been arrested or convicted of a crime that resulted in serious harm to another person or government authority, or whether you have violated any law related to possessing, using, or distributing illegal drugs. Answering 'yes' to any of these questions will typically result in your ESTA application being refused. However, there are grey areas that require careful consideration of the rules and how they apply to individual circumstances.
If you are denied an ESTA due to previous criminal history, you can apply for a US Visitor Visa (B-2 Tourist Visa, B-1 Business Visa, or B-1/B-2 Mixed-Use Tourism & Business Visa). In addition to the standard application form (DS-160), you will need to complete a Criminal History Form and provide a Police Certificate. Certain criminal convictions can render you permanently ineligible for a visa, such as convictions for crimes involving moral turpitude (e.g., theft, fraud, or drug trafficking). All visa applications require full disclosure of criminal history, and lying on the form is considered immigration fraud, which can lead to severe legal consequences, including being banned from entering the US, fines, and potential imprisonment.
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Waivers of inadmissibility
US airport immigration authorities can access various international criminal databases to determine whether travellers are of ''good moral character'. They can see if travellers have a criminal record and may deny entry to those with criminal convictions, unless they have a waiver of inadmissibility.
If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain non-immigrant statuses, or certain other immigration benefits, you must file a form to seek a waiver of certain grounds of inadmissibility. The waiver of inadmissibility does not remove the grounds of inadmissibility but rather allows the traveller to enter despite their criminal record.
The waiver of inadmissibility form is 11 pages long and must be completed in full. The filing location depends on the immigration benefit being sought. The form requires evidence to support the waiver, which depends on the grounds of inadmissibility that apply to the traveller. This may include evidence of a connection between the battery or extreme cruelty that is the basis for the Violence Against Women Act (VAWA) claim and the self-petitioner's removal, departure, re-entry, or attempted re-entry into the United States.
Other grounds for inadmissibility include:
- Communicable diseases of public health significance
- Physical or mental disorders and associated harmful behaviour
- Criminal grounds of inadmissibility, including immigration fraud or misrepresentation
- Membership in a totalitarian party
- Alien smuggling
- Being the subject of a civil penalty under INA section 212(a)(6)(F)
- Drug abuse or addiction
- Failure to submit to the jurisdiction of the court in the United States with respect to that offence
- Violation of religious freedom while serving as a foreign government official
- Stowaway status
- Encouraging, inducing, assisting, abetting, or aiding another alien to enter or try to enter the United States illegally
- Violation of the terms of a nonimmigrant status under section 101(a)(15)(F)(i)
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Immigration form honesty
US immigration authorities conduct thorough background checks and can access various international criminal databases. If discovered, lying can lead to immediate refusal of entry, possible detention, and severe legal consequences. Lying on the ESTA form or in your visa application is considered immigration fraud and can lead to severe legal consequences. These may include being banned from entering the US, fines, and even potential imprisonment. It is always better to be honest and seek legal advice if you have concerns about your criminal record. Attempting to receive a visa or enter the US by wilfully misrepresenting a material fact or committing a fraud, for example, by trying to conceal any criminal record or otherwise, will be treated very seriously by the authorities, impacting your future US immigration applications.
US immigration law in this area is not straightforward and immigration applications are subject to considerable discretion on the part of visa adjudicators, while US border officials also have powers to conduct background checks and refuse entry if they identify just cause. All US visa applications ask for details of any criminal records to be declared. Regardless of when a conviction occurred, you must disclose all such matters fully, as even spent convictions can have a bearing on your eligibility for admission into the US.
Honesty is integral to the immigration process. Some people try to exaggerate or bend the truth during the immigration procedure, which is a bad idea. It is very rare that you share matters about your personal life. However, immigration officers have to ask certain questions about your relationships, income, education, and other personal matters. This is to gauge your reasoning behind entering the US. Everyone has to go through this, and it is not done with the intention of being intrusive for the sake of it. It’s important to remain calm and patient and be as open as possible in your disclosures. The immigration process can take time and effort, but the end results are worthwhile.
There is perhaps no more challenging issue to grapple with in immigration practice than that of misrepresentation. The Immigration Refugee Protection Act (IRPA) sets out the criteria for misrepresentation as well as the penalties, which are significant and can include loss of status, permanent separation from family members, fines, and even jail time. Furthermore, the trend in the past few years for Canada Immigration is a zero-tolerance policy towards misrepresentation with penalties likely to increase. Section 16 of IRPA specifically states that a person must answer all questions truthfully. Section 40 defines misrepresentation as including the withholding of information. Withholding material facts relating to a relevant matter, whether or not the question has been directly put to you, can result in a finding of misrepresentation.
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Border control powers
In addition to CBP, other agencies such as US Immigration and Customs Enforcement (ICE) and the US Coast Guard work to protect US borders. ICE includes Homeland Security Investigations (HSI) agents, who may also be encountered at the border. These agencies aim to prevent the illicit movement of weapons, drugs, contraband, and people, while facilitating lawful entry and promoting lawful trade, which is essential for homeland security, economic prosperity, and national sovereignty.
The US government has also implemented Trusted Traveller Programs, such as TSA Pre-Check, Global Entry, NEXUS, and SENTRI, to expedite the entry process for low-risk, trusted travellers. This allows border officials to focus their attention on higher-risk, unknown travellers.
Regarding criminal records, US immigration authorities conduct thorough background checks, and individuals are required to declare any criminal history on their visa applications. Lying about a criminal record can lead to immediate refusal of entry, detention, and severe legal consequences, including potential bans from entering the US and imprisonment. However, it is important to note that the impact of a criminal record on admissibility depends on various factors, including the nature of the crime and how long ago it occurred.
The powers of border control in the US are shaped by constitutional provisions, such as Article II, which vests the power to protect national security and conduct foreign policy in the President, and Article IV, Section 4, which mandates the Federal Government to "protect each of [the States] against invasion." These provisions underscore the importance of border control in safeguarding national security and addressing risks posed by criminal organisations and other malign actors.
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Frequently asked questions
Lying on your ESTA application is considered immigration fraud and can lead to severe legal consequences, including being banned from entering the US, fines, and even potential imprisonment.
According to the Immigration and Nationality Act (INA), visa ineligibilities in the context of criminality include:
- Conviction of a crime involving moral turpitude
- Conviction of a drug violation
- Two or more criminal convictions with a total sentence of five years or more
You can request a copy of your FBI Identification Record or proof of no criminal record from the Criminal Justice Information Services (CJIS) Division of the FBI. This typically involves submitting a written request with proof of identity and a set of rolled-inked fingerprints.
Yes, it is possible to be denied entry to the US if you have a criminal record. US immigration authorities conduct background checks and can access international criminal databases. However, it is not a straightforward process, and there are waivers available for certain cases.
Customs officers have the authority to ask about your immigration status to determine your right to enter the US. If you are a US citizen, you only need to answer questions establishing your identity and citizenship. Refusing to answer questions as a non-citizen visa holder or visitor may result in denial of entry into the country.
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