Criminal Record? Gain Legal Entry to the United States

What is a United States Waiver of Inadmissibility "Waiver"?

If you have a criminal record, you may be required to complete one of the following in order to gain legal entry to the United States:

• apply for and be granted a Waiver of Inadmissibility (also referred to as a Waiver for Excludability, Waiver, Criminal Record Waiver or US Travel Waiver),
• correct the conditions that rendered you excludable, such as your health; or
• provide evidence that you are not excludable (Laws are complex and are not always interpreted the same.  Individuals are often refused in error or because they do not have proof of their admissibility).

This article applies to people who require advance permission to enter the United States due to inadmissibility involving the following applications and forms:

• Form I-192 Application for Advance Permission to Enter as Nonimmigrant  ( I192 )
• Form I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal ( I212 )
• Form I-601 Application for Waiver of Grounds of Excludability ( I601 )
• Form G-325A Biographic Information ( G325A )
• Form DS 156 Nonimmigrant Visa Application ( DS156 )
• Form DS 157 Supplemental Nonimmigrant Visa Application ( DS157 )

Read on and you will learn all about Waivers, including what makes a person inadmissible to the United States and how to apply for legal entry. 

Criminal Record Travel Risks

Do you have a criminal record?  You may be inadmissible to the United States!  If you are inadmissible, you must have a U.S. Waiver of Inadmissibility (or Visa Waiver for most non-Canadians from Countries in the Visa Waiver Program) to gain legal entry to the United States and avoid the risk of:

People traveling to the United States with you face the same risk as youbecause of your inadmissibility! If you are traveling with a friend or relative that is aware of your inadmissibility and you do not have a Waiver, your friend or relative could be subject to all of the above risks AND they can be charged and convicted with harboring an illegal alienan offence that would make them inadmissible to the United States!

Refusal to the United States can be devastating or extremely disappointing and affect situations such as:

• Business Travel (meetings / training / trade shows)
• Pleasure Trips (vacation, honeymoon, traveling with and without children)
• Immigrating to the United States
• Temporary Study or Employment
• Retiring to the United States on a seasonable basis
• Non-Emergency and Emergency Medical Treatment
• Lost employment opportunities to you (job offer or promotion contingent upon ability to travel to the United States) and to your employer
  

What are Grounds of Excludability?
(EXCERPT from the Immigration and Nationality Act, Sec 212 [8 U.S.C. 1182].)

Criminal and Related Violations

• Crimes of Moral Turpitude AND Controlled Substances
• Exceptions: the offence occurred before your 18th birthday (5 years have since passed following the date of the commission of the offence and release from imprisonment), there is only one offence where the maximum penalty is 1 year and the sentence imposed was 6 months or less.  Includes attempting to commit or commission of an offence for which there was no conviction.
• Controlled Substance Traffickers - Includes “assister, abettor, conspirator, or colluder”
• Conviction of 2 or more offences with a combined sentence of 5 or more years
• Prostitution and Commercialized vice
• Certain aliens involved in serious criminal activity who have asserted immunity from prosecution

Other Grounds

• Health Related Problems
• Security and Related Violations
• Illegal Entrants and Immigration Violators
• Document Violations

CAUTION

There may be exceptions. This list is subject to change at any time and does not include all grounds for inadmissibility. Nor does this list constitute legal advice. Extreme caution must be exercised when determining your inadmissibility. It is advised that you talk to an Immigration Advisor to discuss your situation.  Call 1-800-320-2477 for your free consultation.

What is a Crime involving Moral Turpitude?

According to www.dictionary.com, Moral Turpitude is defined as:

“1 : an act or behavior that gravely violates the sentiment or accepted standard of the community
2 : a quality of dishonesty or other immorality that is determined by a court to be present in the commission of a criminal offense …Theft, perjury, vice crimes, bigamy, and rape have generally been found to involve moral turpitude, while liquor law violations and disorderly conduct generally have not. “

According to Jordan v. De George, 341 U.S. 223, 229, 71 S. Ct. 703, reh’g denied, 341 U.S. 956, 71 S. Ct. 1011 (1951), moral turpitude is “conduct that is inherently based, vile, or depraved, and contrary to the accepted rules of morality and the duties between persons or to society in general”.

Examples of Crimes of Moral Turpitude (CIMT)

(*Source:  McWhirter, R. J. The Criminal Lawyer’s Guide to Immigration Law:  Questions and Answers, Alberta Bar Association:  2006, 2nd Ed., p. 133-136.)

List of Excludable Offences

You may be inadmissible to the United States if you were convicted with one or more of the following:

• two or more summary offences;
• one summary offense that carries a maximum potential penalty of greater than one year;
• one indictable offence; or
• anything drug-related. 

Offences like fail to appear, causing a disturbance, common assault and impaired driving are not ordinarily considered in determining inadmissibility as they are not Crimes Involving Mortal Turpitude (CIMT). Even impaired driving causing injury or death may not make you inadmissible for so long as there is “no evidence of intent to cause injury or death”.  As such, multiple convictions involving crimes which are NOT classified as CIMT's may not render you excludable to the United States.

Most young offender convictions or convictions that were committed prior to your 18th birthday do not render you inadmissible unless they were very serious in nature.

Legal Information is Not Legal Advice.  This article does not constitute legal advice.  Legal information is subject to change at any time.  Legal advice may vary based on individual circumstances and as such you cannot rely on the above as being legal advice.  The above information is general in nature and may not be applicable to your individual circumstances.

Summary vs Indictable Offences

Convictions are tried either summarily or by indictment. Some convictions are always summary (i.e. causing a disturbance) and are considered minor offences. Some convictions are always indictable (i.e. break and enter into a dwelling house, sexual assault, assault causing bodily harm, theft over, theft from an employer, drug trafficking or cultivation) and are more serious offences.  A hybrid offence is an offence that can be tried either summarily or by indictment.

A hybrid offence is ordinarily treated as an indictable offence, unless the crown elects to treat it as a summary offence. In other words, hybrid offences can be either summary or indictable and include convictions such as theft under, mischief, and assault. To determine whether your convictions are summary or indictable, you will need to refer to your Court Document or you may contact our office at:  1-800-320-2477 ext 0 (or 1-403-229-2774 ext 0 if calling from Calgary or outside Canada).

Conditional and Absolute Discharges

This excerpt is from the Canadian Criminal Code:

"730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused by discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2)."

The above paragraph indicates that there has been an admission or finding of guilt.  Even though a discharge is not a conviction, it is still evidence of guilt, and may still render a person inadmissible to the United States if drug-related or would have been tried by indictment if convicted. 

Traveling to the United States with a Pardoned Criminal Record

According to the National Parole Board, a Canadian Pardon is not recognized outside Canada. Specifically, they state: "Many foreign countries, including the United States (U.S.), do not recognize a Canadian Pardon. If you have a criminal record and are interested in going to the U.S., you may want to apply for an American Immigration and Naturalization Service Waiver (American INS Waiver)."

Can My Pardoned File Be Disclosed to the United States or Other Country?

According to the National Parole Board, “Under the CRA, only the Solicitor General of Canada has the authority to disclose information from a Pardoned record…if satisfied that the disclosure is desirable in the interests of the administration of justice or for any purpose related to the safety or security of Canada or any state allied or associated with Canada.  In other words, the Solicitor General may choose to disclose a pardoned file to the United States or any other country without your consent or knowledge.

According to Sec. 212(a)(6)(i) of the United States Immigration and Nationality Act[8 U.S.C. 1182], misrepresentation is defined as:

"In general - Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible."

According to McWhirter, R.J. (The Criminal Lawyer's Guide to Immigration Law: Questions and Answers, Alberta Bar Association: 2006, 2nde Ed., p. 261.), "denying a criminal conviction violates 18 U.S.C. § 1546."

Fact or Fiction: Common Myths about Traveling to the U.S. with a Criminal Record

Canadians often make FALSE ASSUMPTIONS about their ability to travel to the United States.   Your ability to travel to the United States is not an automatic right; it is a privilege that is easily revoked.  The following are FALSE ASSUMPTIONS:

Fiction	Fact
Your ability to enter the United States is discretionary.	Your admissibility is not discretionary.  Either your record makes you inadmissible to the United States or it does not.  The only thing that is discretionary when entering the United States is whether or not a U.S. border crossing guard is going to run your name to see if you have a criminal record.  Laws are complex.  There have been cases where border guards have chosen to ignore the fact that you are inadmissible--but this does not ordinarily happen (so it would appear your admissibility is discretionary).  Further, a border guard may err in letting you think you are admissible when in fact you are not.  Or, a border guard could refuse you in error or because you do not have proper documentation with you that proves your admissibility.
I've been to the United States several times before...so I must be okay.	You are only randomly checked—the United States border (port of entry) office does not check every individual to see if they have a criminal record.
I received a Canadian Passport…so I must be okay to travel.	A Canadian Passport is a form of identification.  It is a travel document that facilitates travel.  Passports will soon be mandatory for Canadians traveling to the United States.  A passport, however, is not linked to your Criminal Record and is not evidence that you no longer have a criminal record.  Further, a Canadian Passport does not help you overcome inadmissibility.  If you are inadmissible, you must apply for a Waiver.
Its been over 7 years since I was last convicted…my record is probably gone by now.	Your record does not “automatically go away” or get purged (there are exceptions!).  In order to seal your criminal record, you must apply for a Canadian Pardon.  A Canadian Pardon does not erase the fact that you were convicted.  Your Pardon can be revoked if you re-offend.  Regardless, Pardons are still not recognized by the United States and Pardons do not help you overcome inadmissibility,
Sometimes they let me in, sometimes they don’t.  It’s no big deal…I’ll try to enter again.  The worst that can happen is that they refuse me again.	You hope that all they do is refuse you!   Homeland Security can confiscate your vehicle, fine you, lay criminal charges against you, detain you, incarcerate you, and more!  The admissibility of passengers traveling with you may also be at risk.  Persons traveling to the U.S. with you, especially in cases where they are aware of your record and that you may be inadmissible, may be charged and convicted with harboring an illegal alien.
I’ll let my spouse drive her vehicle…that way if they run the license plate on her vehicle and see that she has no criminal record they may just wave us through.	If Homeland Security checks to see if the passengers have a criminal record and it is determined that your spouse was aware of your inadmissibility, your spouse can be charged and convicted with harboring an illegal alien (which could result in detention, arrest, fines and incarceration) for trying to help you gain illegal entry into the United States.  Such an offence would then automatically result in your spouse’s inadmissibility.
I have to go to the United States on an emergency.  They should let me in.	Unless it is a life and death situation, you will not likely get a temporary pass to enter…even if it means you will lose your job or be unable to go to the United States on your honeymoon.  Emergency applications are not intended to help individuals circumvent having to apply for a Waiver…they are for life and death situations only.
I’ve been told that I should not apply for a Pardon before applying for a Waiver.	The concern is that once pardoned it will be difficult to obtain the necessary documents required when applying for a Waiver.  However, once pardoned, you personally can still access your pardoned file and Court Documents under the Privacy Act.  However, it is possible that old Pardoned Files and Court Documents may eventually be destroyed (usually this only occurs when the criminal record is small, minor and very old). When applying for your Pardon, be sure to keep a photocopy of your criminal record and court documents.  Furthermore, the current processing time to order a C216C Criminal Record (not pardoned) is 2 to 3 months and the fee is $25.  Once pardoned, the current processing time is 1 to 2 months and the fee is $nil.  It is faster (usually) and cheaper to order a pardoned file.
I have a Conditional or Absolute Discharge—it is not a conviction and therefore, I will not have problems going to the United States.	This excerpt is from the Canadian Criminal Code: "730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused by discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2)." The above paragraph indicates that there has been an admission or finding of guilt.  Even though a discharge is not a conviction, it is still evidence of guilt, and may still render a person inadmissible to the United States.

1-Year, 5-Year and Permanent Waivers

Currently, only 1-year to 5-year Waivers are issued.  Permanent Waivers (I-175  US Border Crossing Card) are no longer issued.  If you possess an old Border Crossing Card—you are very fortunate.  Be sure to keep the card in a safe place—as it may be hard to replace if it is lost or stolen.  Rumor has it the U.S. Government may re-introduce the permanent Waiver.

Note: Technically the I-175 card is no longer valid. But the 2-3 page document you received with it (I-192 Waiver) is still valid. You should travel with the I-175 border crossing card and I-192 Waiver.

Hranka Case

In Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the decision to refuse or grant your application is based on the following “three factors: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant's immigration law, or criminal law violation, if any; and (3) the nature of the applicant's reasons for wishing to enter the United States.”

Processing Times

Since 1987, the processing time for a Waiver has fluctuated from as few as 3 months to as long as 2 or more years.  Currently, the Department of Homeland Security is extremely backlogged due to restructuring, lack of funding and world events.   Do NOT wait until the last minute to apply for a Waiver.  You may need to apply at least 6 to 18 months in advance of your scheduled trip.

Emergency Applications

Waivers cannot be rushed or expedited.  Instead, if an emergency situation exists, you may be considered for a Port Parole (previously called an Advance Parole).  However, an emergency Port Parole only applies to life and death situations—not employment or vacation or honeymoon.  There are exceptions. 

If your situation qualifies as an emergency, you may still be refused a Port Parole (and Waiver) if your emergency or reasons for traveling to the United States do not outweigh the seriousness of risk to the United States should you be permitted entry. Loss of employment or employment opportunities ordinarily are not considered an emergency. 

If you would like to find out if your situation may qualify as an emergency, or if you would like a free consultation, please contact our office. 

Traveling to Foreign Countries with a Criminal Record

Criminal Record and Travel Abroad
Most countries will not inquire as to whether you have a criminal record when traveling to their country unless you plan to (a) visit their country for more than 6 months; (b) immigrate to their country; or (c) obtain a work visa for their country. You will need to check the Consulate of the Country to which you are traveling to determine if your record will prevent you from entering.

CAUTION:  due to world events more and more countries are requiring individuals to apply for Visas—in which case, you may be required to disclose your criminal record.  If your record is an obstacle, in most cases this obstacle will be removed once you obtain a Canadian Pardon.

NOTE: if you are inadmissible to the United States, you cannot travel to a foreign country via the United States unless you have a Waiver of Inadmissibility.

Application Fees and Disbursements

Pardon:  $295 (our fee) + disbursements * + GST (Total price varies $392.20 and up)

• NOTE:  clients living outside Canada—add $100 to our fee.
• Full-Time Students receive a student discount of $50 + GST.

*Usual Disbursements (all disbursements are subject to change)

• Fingerprinting=$0 if you attend our office or  Police Detachment Fees=$0 to $40 each set
• RCMP Criminal Record=$25
• Local Police Checks=$0 to $70 each (conducted in each town/city you have lived within past 5 years)
• National Parole Board=$50
• Court Documents=if applicable, $10 to 20 each (Alberta only) or $0 for all other Provinces

Waiver or Visa Waiver: $595 (our fee) + disbursements* + GST  
(Clients who have already been pardoned and are applying for a Waiver or Visa Waiver pay a reduced fee of only $445)

*Usual Disbursements (all disbursements are subject to change)

• U.S. Homeland Security=$265 U.S. for Canadians (or $100 U.S. for non-Canadians)
• Fingerprinting=$0 if you attend our office for service.  Police Detachment Fees vary $0 to $40
• RCMP Criminal Record=$25 if you are not pardoned.  Fee=$0 if you are pardoned
• Court Documents=if applicable, $10 to 20 each (Alberta only) or $0 for all other Provinces
• Drug Testing=if applicable, $50 to $75

Pardon and Waiver:  SAVE $159.00
If you obtain both services from us, we will reduce our combined fees by $150 + 6% GST = $159.00.

About Us

My name is Debbie Ward.  I have been assisting individuals with Pardons and Waivers since 1987.  I am also the owner of Canadian Legal Resource Centre Inc. (CLRC)—a business that I have operated since 1995.  My company employs a team of 4 full-time staff members.   My credentials are as follows:

• Bachelor of Commerce Degree (B.Comm.) – University of Calgary
• Professional Legal Assistant Diploma  - Career College
• Immigration Courses – Seneca College  (Basis Principles of Immigration Law and Policy; Skilled Worker; Family Class, In Canada Applications and Appeals to Immigration and Refugee Board; Temporary Status; Professional Practice Management )
• Commissioner for Oaths
• Authorized Fingerprinting Agent – RCMP “K” Division
• 19+ years experience
• Assisted with thousands of successful Waiver applications

Consumers’ Choice Awards for Business Excellence

As a testament to our abilities, we just received the 2006 Consumer Choice Awards for business Excellence!  An independent research firm conducted a random survey throughout Calgary among individuals and businesses.  Over 100 companies from different business categories were granted this award.  The purpose of this award “is to publicly identify those establishments, which have been voted by consumers as being their choice for excellence.”  This year the category “paralegal company” was added for the first time.  We are delighted to be the first company to receive this award. Thank you Calgary for choosing us as your #1 Paralegal Company!

How to Apply for a Waiver

There are several reasons why you should hire our company to assist you with your Waiver:

• The current processing time is very lengthy (at least 8 or more months and in many cases 12 to 18 months).  Can you afford to wait the 8 to 18 months to find out your application has been refused only to have to re-apply and wait another 8 to 18 months? 
• By hiring our company, you maximize your chances of obtaining a 5-year Waiver (and minimize the risk of refusal or receiving a 1-year Waiver), you gain peace of mind, and in cases where you are not inadmissible--we provide you with the documentation that you need to carry with you to prove your admissibility and avoid the risk of wrongful refusal. 
• We also complete a thorough assessment of your case and assist with US waiver forms, personal waiver letters, character references, and risk assessments.

THIS ARTICLE DOES NOT CONSTITUTE LEGAL ADVICE

Legal Information is Not Legal Advice.  This article does not constitute legal advice.  Legal information is subject to change at any time.  Legal advice may vary based on individual circumstances and as such you cannot rely on the above as being legal advice.  The above information is general in nature and may not be applicable to your individual circumstances.

 

Canadian Legal Resource Centre Inc. 319, 4014 Macleod Trail SE Calgary, Alberta T2G2R7 debbie@canadianlegal.org melissa@canadianlegal.org 1-403-229-2774 (Calgary) 1-800-320-2477 (Toll Free) 1-403-229-2724 (Fax) Hours of Operation Mon-Fri: 8am - 5pm MST Sat: 10am - 3pm MST Other: Occasional Evenings

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