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The
US ESTA Visa Waiver Program -
for travel to the
USA
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)
- 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 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
persons 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
Further Information
For further information on ESTA look at https://esta.cbp.dhs.gov/esta/WebHelp/ESTA_Screen-Level_Online_Help_1.htm
or for specific advice, contact
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