When an overseas company’s employee is arrested on a minor criminal charge while on business in the United States, the company needs to consider how it and the employee may minimize the chances that the employee’s future business travel to the United States will be affected negatively. This article is the third in a three-part series. Part 1 and Part 2 can also be found on InsideCounsel.com.
Consequences for business travel
While a previously issued ESTA authorization might still allow the employee to enter without a re-application, the employee risks being denied entry if he or she is questioned at the U.S. port of entry and must disclose that he or she has been arrested. Our experience includes cases in which Customs and Border Protection agents at the port of entry have asked this question. The employee’s only choice in such a case is to answer truthfully, because an untruthful answer can be extremely damaging and can result in future exclusion from the United States. Knowingly making a false statement to a U.S. federal official in a matter within the official’s jurisdiction is also a separate and serious federal crime. Our experience also includes cases in which employees arrested since their last U.S. visit were denied ESTA authorization (upon their disclosure of the fact that they were arrested) and had to apply for a visa.
Accordingly, one option is simply to apply for a visa. The standard U.S. visa application (form DS-160) asks the applicant to answer “yes” or “no” as to whether he or she was ever arrested for or convicted of “any offense or crime,” no matter whether the offense was the subject of any pardon. The visa application commonly will include a subsequent interview with a U.S. consular officer and a waiting period of 10 to 14 days after the interview, or longer if the application is referred to “administrative processing.”