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I'm a UK citizen looking to travel to the US for the first time.

I have been reading about the entry requirements and I am seeing conflicting rules/advice from different places regarding whether or not I may be eligible to apply for an ESTA to travel under the Visa Waiver Program.

I was previously arrested in the UK around 15 years ago (in my early 20s) and released with "no further action" (NFA) as the outcome. The reason given for the arrest I believe was Affray (I was mixed up in the chaos when trying to break up a fight). I have no charges, convictions or criminal record.

I believe that I meet all other requirements to travel under the VWP using an ESTA.

Reasons to believe I may not be eligible to travel under the VWP using an ESTA:

  • On the UK Government's website it is stated "You cannot apply for an ESTA visa waiver if you: have been arrested (even if the arrest did not result in a criminal conviction)"
  • The website of the US Embassy & Consulate in the UK states: "We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, [...], attempt to travel visa free under the Visa Waiver Program." (emphasis mine)

Reasons to believe I may be eligible to travel under the VWP using an ESTA:

  • The US Department of State's Bureau of Consular Affairs website lists the requirements for using the VWP, and I meet all of the criteria. It does not mention anything about arrests.
  • The FAQs of the US Customs and Border Protection website indicates that the traveller will be asked eligibility questions only about arrests and convictions for certain crimes (my understanding is that my arrest here may not be applicable).
  • Under the section "Who is eligible to submit an application?" in the FAQs of the ESTA area of the US Customers and Border protection website, I seem to again meet all of the requirements. Nowhere is an arrest record mentioned. Though, it could be that the person reviewing may still reject my application for an ESTA.
  • My understanding is that the ESTA application asks (source here) only about arrests or convictions for crimes that resulted in serious damage to property, or serious harm to another person or a government authority. I do not believe that I would need to answer affirmatively in this case.

More context

Aside from the aforementioned arrest, I'd likely be considered to be in good standing in most aspects of life. I hold a Bachelor's degree and work as a skilled professional in the UK (for an American company with a global presence and offices in the UK). I have a good credit rating, a mortgage, good relationships etc.

Question

Given the conflicting information presented here, do you believe that I would qualify for travel to the US under the VWP with an ESTA? If you think so, or don't think so, can you provide any evidence to support?

I would like to proceed with honesty and in good faith and I have no intention of misrepresenting anything. I would really like to avoid applying for an ESTA, answering "no" to that specific question, and have my misunderstanding be construed as dishonesty and put myself in a bad position.

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  • I was arrested, charged, and convicted in my early twenties for criminal damage. I actually went to court over it and had to pay a fine.Last year I travelled on an ESTA and answered No to the arrest question. To be honest it was so long ago, nearly 30 years, I didn't even think it might be relevant.
    – tom redfern
    Commented Feb 26 at 7:00

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whether or not I may be eligible to apply for an ESTA to travel under the Visa Waiver Program

You can certainly apply. If the application is unsuccessful you will need to get a B visa to travel to the US as a visitor.

On the UK Government's website it is stated "You cannot apply for an ESTA visa waiver if you: have been arrested (even if the arrest did not result in a criminal conviction)"

The UK is trying to be helpful to its citizens and residents, but I am sure that they recognize that theirs is not the last word on matters of US law and administrative procedure.

Given the conflicting information presented here, do you believe that I would qualify for travel to the US under the VWP with an ESTA? If you think so, or don't think so, can you provide any evidence to support?

I think it's likely that you would be able to do so. But I should say that I haven't given a lot of thought to whether your answer to the the arrest question should be yes or no (not least because I'm not entirely sure of the exact wording of the question). You should consider this carefully, and if there is any doubt in your mind, I would advise you to answer yes. The worst possible consequence of that answer is that your application is refused and you have to apply for a visa. It's a bit more expensive, but it also gives you more certainty. (You might even skip the ESTA application altogether.)

In the visa application it's almost certain that your arrest record will be examined and found not to be a ground of inadmissibility.

I would like to proceed with honesty and in good faith and I have no intention of misrepresenting anything. I would really like to avoid applying for an ESTA, answering "no" to that specific question, and have my misunderstanding be construed as dishonesty and put myself in a bad position.

The best way to avoid this is either to apply, answering "yes," or to skip ESTA altogether and go straight to the visa. But if you're really certain that your arrest allows a "no" answer, do it. Honest misunderstanding is allowed, and you can point to this question as evidence if your good faith effort to understand the legal requirement. I doubt it would come to that, though.

So really it's up to you, probably depending on how burdensome you'd find it to apply for the visa.

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  • The exact question is ‘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?’
    – JonathanReez ♦
    Commented Nov 5, 2023 at 5:09
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    @JonathanReez thanks. Since an arrest may be made for a crime that may not even have happened it's hard to know how the "serious damage or serious harm" should be interpreted there. If you're arrested for a murder that didn't actually occur, does that count? If you're arrested in connection with a bar fight that caused serious damage or harm, I suppose that counts even if you're found innocent, but what if you're arrested in connection with a bar fight that caused no harm or damage? There's a lot of room for uncertainty.
    – phoog
    Commented Nov 5, 2023 at 22:55
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    "There's a lot of room for uncertainty" - I think that's the crux of this problem. There's not only conflicting advice, but the wording is so open to interpretation that it's not remotely clear how to proceed. I guess that's why the UK government and the US embassy don't recommend applying if you've had even one arrest, regardless of the outcome of it. I think the most logical and safe thing to do at this point is just apply for a visa. Perhaps I can try to get clarification from the consulate staff whether I could have applied for an ESTA in my situation, though it'll be too late then.
    – someguy
    Commented Nov 6, 2023 at 16:45

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