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The
US ESTA Visa Waiver Program -
for travel to the
USA
Background
The US Visa Waiver Program enables nationals of 36
participating countries including Australia to travel to the
United States for tourism or business (visitor [B] visa
purposes only) for stays of 90 days or less without
obtaining a visa.
To use the Visa Waiver Program, the traveller must obtain a
valid authorization through the Electronic System for Travel
Authorization (ESTA) prior to travel. The ESTA is on-line,
through the United States Department of State website -
https://esta.cbp.dhs.gov/esta/. You recognise this as the
official website because of the .gov. Avoid the other ESTA
websites, some of which are scams.
The ESTA Application
The ESTA Application needs to be completed with details from
the passport that you intend to travel under and will
require payment by credit card of the fee of USD$14
The passport must be a current passport issued by a
participating country – most European counties and select
East Asian countries (Australia, Brunei, Japan, New Zealand,
Singapore and South Korea) are the participating countries.
Canadian passport holders are not required to use the VWP.
No Middle East, Central Asia, African or Central and South
American counties are on the list.The ESTA Application has 5
questions to be answered –
- Do you have a communicable disease; physical or
mental disorder; or are you a drug abuser or addict?
- Have you ever been arrested or convicted for an
offense or crime involving moral turpitude or a
violation related to a controlled substance; or been
arrested or convicted for two or more offenses for which
the aggregate sentence to confinement was five years or
more; or been a controlled substance trafficker; or are
you seeking entry to engage in criminal or immoral
activities?
- Are you seeking to work in the U.S.; or have you
ever been excluded and deported; or been previously
removed from the United States; or procured or attempted
to procure a visa or entry into the U.S. by fraud or
misrepresentation?
- Have you ever detained, retained, or withheld
custody of a child from a U.S. citizen granted custody
of the child?
- Have you ever asserted immunity from prosecution?
If you answer yes to any of these questions, you will need
to visit the US Embassy or US Consulate and complete a visa
application, for which the fee payable is about $150. If you
know the answer is yes to any of these questions, there is
nothing to be gained by completing the ESTA Application – go
directly to the US Embassy or US Consulate and complete a
visa application – a paper application, and pay the fee.
Question B) - the crime question
Many travellers are concerned about Question B) that a
criminal offence on their record may prevent them from using
the ESTA Visa Waiver Program.
Question B) can be broken up into these parts –
- an arrest or conviction for an offense or crime
- which involves moral turpitude or
- which is a violation related to a controlled
substance; OR
- an arrest or conviction 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 seeking entry to engage in criminal or
immoral activities
B)
There are two broad categories offences or crimes which come
within Question B) -
- the first are serious crimes - offenses or
crimes of moral turpitude
- the second are drug offences - violations
relating to a controlled substance
What are offenses or crimes involving moral turpitude
According West's Encyclopaedia of American Law, moral
turpitude is a legal concept in the United States that
refers to "conduct that is considered contrary to community
standards of justice, honesty or good morals." The concept
is obsolete in Anglo-Australian common law, but in the USA,
it is current.
The explanation that appears beside Question B) on the ESTA
Application is - Crimes involving moral turpitude - Such
offenses generally involve conduct which is inherently base,
vile, or depraved and contrary to the accepted rules of
morality and the duties owed to persons or society in
general. There are factors, such as the age of the offender
or the date of the offense, that may affect whether an
offense will be considered a crime involving moral turpitude
for purposes of the Immigration and Nationality Act.
On the United States Department of State website, these
categories of crimes are listed as crimes of moral turpitude
-
Crimes against Property
Crimes involving Fraud or Evil Intent namely Arson,
Blackmail, Burglary, Embezzlement, Extortion, False
pretenses, Forgery, Fraud (both Statements to induce Fraud
and actual Fraud), Larceny (grand or petty), Malicious
destruction of property, Receiving stolen goods (with guilty
knowledge), Robbery, Theft (when it involves the intention
of permanent taking), Transporting stolen property (with
guilty knowledge)
Crimes Committed Against Governmental Authority
Bribery, Counterfeiting, Fraud against revenue or other
government functions, Mail fraud, Perjury, Harboring a
fugitive from justice (with guilty knowledge), Tax evasion
(wilful)
Crimes Committed Against Person, Family Relationship, and
Sexual Morality
Abandonment of a minor child (if wilful), Adultery, Assault
(with intent to kill, commit rape, commit robbery or commit
serious bodily harm), Assault (with a dangerous or deadly
weapon), Bigamy, Paternity fraud, Contributing to the
delinquency of a minor, Gross indecency, Incest (if the
result of an improper sexual relationship), Kidnapping,
Lewdness, Manslaughter (Voluntary or Involuntary if
reckless), Mayhem, Murder, Pandering, Prostitution, Rape
(including "Statutory rape" by virtue of the victim's age)
Attempts, Aiding and Abetting, Accessories and Conspiracy
An attempt to commit a crime deemed to involve moral
turpitude, Aiding and abetting in the commission of a crime
deemed to involve moral turpitude, Being an accessory
(before or after the fact) in the commission of a crime
deemed to involve moral turpitude, Taking part in a
conspiracy (or attempting to take part in a conspiracy) to
commit a crime involving moral turpitude
For further details, refer to the U.S. Department of State
Foreign Affairs Manual Volume 9 - Visas: 9 FAM 40.21(A) N2
Moral turpitude
Driving offences which do not involve bodily injury
or death are not covered by this definition and
therefore are not crimes of moral turpitude.
A violation related to a controlled substance
Violations relating to controlled substances, that is,
drugs, are a completely separate category from crimes of
moral turpitude.
All violations of laws concerning controlled substances are
grounds for disentitlement to the Visa Waiver Program.
If the answer to Question B) in the ESTA form is yes, then
it is necessary to apply for a formal visa through the US
Embassy or consulate. This involves the need to have an
interview with the US Embassy to apply for a visa based upon
a waiver of inadmissibility.
A person may apply for a copy of their criminal record – see
http://australia.gov.au/faq/police-criminal-history-records-check
For further information look at
https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm
or for specific advice, contact us. |
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