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What is the ESTA program?

The ESTA program is a US Visa Waiver program which 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 stamp on their passport.

If the travel is not on an Australian passport (or the passport of a participating country) then a visa stamp is required to enter the US.

To use the US 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 other ESTA websites, some of which are scams to collect money.

If the traveller cannot answer all 5 questions on the ESTA Application with no, or if the traveller wants to visit for more than 90 days, they need to apply for a US Visa stamp on their passport in the normal way. US Visa stamp applications for a non-immigrant visa can be made on-line or by appointment at the nearest US Consulate.

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 used 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 (with no) –

  1. Do you have a communicable disease; physical or mental disorder; or are you a drug abuser or addict?
  2. 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?
  3. 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?
  4. Have you ever detained, retained, or withheld custody of a child from a U.S. citizen granted custody of the child?
  5. Have you ever asserted immunity from prosecution?

If you answer yes to any of these questions, you will need to either make a non-immigrant visa application on-line by completing a DS-160 form or make an appointment to visit the US Embassy or US Consulate and complete a visa application form, 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 on-line or make an appointment with 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 any criminal offence at all on their record may prevent them from using the ESTA Visa Waiver Program.

Question B) applies to more serious crimes, drug related offences, and repeat offenders.

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

There are two broad categories of crimes and offences 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 of moral turpitude?

According West's Encyclopaedia of American Law, a crime of moral turpitude is a legal expression in the United States that refers to "conduct that is considered contrary to community standards of justice, honesty or good morals." The expression is obsolete in Anglo-Australian common law, but in the USA, it is current.

In Anglo-Australian common law, an equivalent of a crime of moral turpitude would be a felony, as opposed to a summary offence. As a general rule, a felony is an offence where a term of imprisonment may be ordered on conviction – it does not matter if a fine / penalty was actually imposed, what matters is that a term of imprisonment might have been imposed.

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

Driving offences which do not involve bodily injury or death or recklessness are not covered by this definition and therefore are not crimes of moral turpitude.

For example, I am often asked if a conviction for driving without a licence, or whilst under the influence of alcohol or a drug are convictions that a person must answer yes in Question B).

My response is that Question B) can be answered no as these driving offences are not crimes of moral turpitude, so long as the car is not stolen, the charge is not for possession of drugs, and there is no bodily injury or death resulting.

Drugs - controlled substances

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, and indeed from a visa stamp

The US has a zero tolerance policy for drug convictions – even possession of performance drugs. To illustrate, recently a visa application was denied because the traveller had been convicted of possession of 1 ml of testosterone.

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.

National Police Certificate

Before visiting the US Embassy or Consulate, the traveller should obtain a National Police Certificate, which is a document issued by the Commissioner of Police in the person’s state. You can assume that the US Government will have access to the information found on the National Police Certificate.

The Certificate records disclosable court outcomes and/or pending charges in all Australian police jurisdictions under these headings –