ESTA or Visa

Hi everybody,

I have a serious concern whether to apply for an ESTA or regular visa. I have read other threads but those convictions are very different than mine. I hope I can find some good advice here as far as I have read some good advice/replies from what seem very knowledgeable people I have travelled to the US many times before on ESTA. I am from Germany btw.

My situation is as follows:
In March 2023 I have been convicted of basically financial fraud. This happened with my former employer, a financial institution. The sentence was 8 months of which 7 conditionally plus 240 hours community service. These 240 hours are done.

I don’t quite understand how to respond to the ESTA eligibility question number 2:
“Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority”.
Although i have been convicted as i mentioned before, if i read the question carefully word by word my response would be:
-serious damage to property: answer would be “NO”
-serious harm to another person: answer would be “NO”
-serious harm to government authority: answer would be “NO”

Apart from the fact how the word “serious” should be interpreted, I haven’t caused any harm to property, a person (where i assume an individual is meant), or a government authority. I have reread the question numerous times and my answer would every time be truthfully “NO”.

The last thing I want is to have these concerns upon travelling to the US for the holidays and resulting in issues with CBP upon arrival, or maybe even at departure. I don’t want discussions there about how questions should or should not be interpreted which might even result in not gaining access to the country. We usually book tickets, a car and hotelreservations way in advance and it could all be lost.

I also wonder whether US Customs has insight on criminal records from people abroad (specifically from EU).

With this I contacted a US lawyer and we had an online meeting. I explained the whole situation and conviction and I was told that the conviction IS one of moral turpitude BUT the ESTA question 2 does not specifically ask about crimes involving moral turpitude. Basically I should be good applying for ESTA. Obviously happy hearing this it still made me doubt somehow.

I hope anybody with any knowledge on this could give some clarification and if to “just” follow the recommendation of this lawyer? I have it in written form, so in theory I can show it to CBP on arrival, if needed. But this would be all extremely stressfull and dont know whether to take such chance.

Any advice or ideas would be highly appreciated!

Thanks!

IMHO - financial fraud does cause harm to another person even if you do not know specifically what person was harmed. But I will defer to those who know more about this than I do

Hi and thanks for your reply!
This “type” of fraud didnt cause any harm to a person. As far as I worked for an financial institution it also didn’t cause any harm to clients or co-workers. Let that be clear.
The only one who was harmed was my employer itself, the financial institution. But I am repaying and we are even in the middel of a possible (partial) remission.
Maybe that’s how the lawyer saw it and recommended to apply for an esta.

You're not going to get peace of mind unless you go through the visa process.

Fraud of any type is a CIMT (crime involving moral turpitude) regardless of whether it affects an individual or an institution. Theft from an employer is also a CIMT.

>I have it in written form, so in theory I can show it to CBP on arrival, if needed. But this would be all extremely stressful and dont know whether to take such chance.

Imo you were wrongly advised. I'm afraid there are a lot of dubious 'specialist' lawyers out there.

I doubt the CBP would be impressed by or even interested in a document produced by a random lawyer and....as you say...do you really want the worry and stress of going through US Customs whilst feeling 'iffy' about your Esta? Looking worried/nervous of course increases the chances of being taken for secondary questioning...but that can also happen to anyone at any time. And if you use an Esta once you'll need to use it for every other US visit unless you're willing to apply for a visa and explain why you thought using an Esta was ok.

Ultimately, only you can decide whether to apply for an Esta or a visa. Before you deide you should know that a) making a fraudulent declaration on the Esta is itself a crime in the US and b) if you ever need a visa for e.g. work or residency...or if the US removes/suspends the Esta option (which it can do at any time) your previous entries using an Esta will cause problems.

Thanks for the replies.

@leics2: the only thing I want to do is to play it fair and square. Making fraudulent declarations on the esta is no option. But as far as my lawyer told me I should answer that specific question with NO, it made me start thinking later. How can a lawyer say that then? Yes CMIT but NO as answer because that question doesn’t refer to CMIT.

And to be honest, the question is vague but also very specific relating to harm to a person, property or government authority. None of these are true in my case.
If the question would be: “have you ever been convicted of a crime” it would be clear and I wouldnt make an account on this site
In theory, and when you are flagged, is this something you can “discuss” when entering the US? Surely I am not objective but when a US lawyer tells me the same, its what I like to hear.

>In theory, and when you are flagged, is this something you can “discuss” when entering the US?

Not 'discuss' as such. You're asked questions and they make a decision based on your answers {and, if appropriate, other research they can do), in consultation with senior staff if necessary. It's exactly the same as in the UK btw. They're not interested in discussing matters, only in the facts.

>If the question would be: “have you ever been convicted of a crime” it would be clear and I wouldnt make an account on this site

The advice given by the US Embassy in the UK (and I imagine in all Esta-eligible countries) is very clear:

>If you have ever been arrested, even if the arrest did not result in a criminal conviction, have a criminal record, ............., we do not recommend that you attempt to travel visa free under the Visa Waiver Program.

https://uk.usembassy.gov/visas/ineligibilities-and-waivers-2/traveling-under-the-visa-waiver-program/

I think that makes the answer to the only thing I want to do is to play it fair and square. ' pretty obvious?

There is no mention of 'crimes involving moral turpitude' on the Esta now (that wording was used when the first Estas were introduced but was changed quite quickly ) because CIMT is a US-specific legal concept. Only interviewing visa officers can decide whether a conviction from another jurisdiction would be considered a crime involving moral turpitude in the US. That's why, as well as looking at the ACRO, they ask questions about the circumstances and detail of each conviction.

'Specialist' lawyers would, of course, be more than happy to challenge decisions in a US court.....for very, very substantial fees.

[ Edit: Edited on 29 Oct 2024, 16:41 GMT by leics2 ]