Please check out the United States Waiver topics below or scroll through this web page for all of your answers.
A United States Waiver allows you legal entry into the United States if you are inadmissible. Inadmissibility could arise due to a number of factors described below. For your free consultation, click the button below.Free Consultation 1-800-320-2477 (Calgary: 403-229-2774)
If you are inadmissible, you must have a United States 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:
CAUTION: People traveling to the United States with you face the same risk as you because of your inadmissibility.
If you are traveling with a friend or relative that is aware of your inadmissibility and you do not have a United States 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 alien, an offence that would make them inadmissible to the United States.
Refusal to the United States can be devastating, embarrassing, humiliating and extremely disappointing as it affects situations involving:
If you are inadmissible to the United States, you may need a United States Waiver of Inadmissibility to overcome your inadmissibility. You are inadmissible if you committed or were convicted of a criminal offence as an adult involving (See Immigration and Nationality Act, Sec 212 [8 U.S.C. 1182].):
Criminal and Related Violations
EXCEPTIONS TO INADMISSIBILITY – CRIMES INVOLVING MORAL TURPITUDE
NOTE: The Criminal Code has been amended many times over the years—so to know what maximum sentence applies to your particular case, you’d have to go to the Criminal Code of Canada for the time period you were convicted.
EXCEPTIONS TO INADMISSIBILITY – CONTROLLED SUBSTANCE
EXCEPTIONS TO INADMISSIBILITY – GRAY AREA
The following convictions currently carry a maximum potential sentence of 18 months in jail, so regardless of whether you received time in jail, even if tried summarily, it would appear that you may still need to apply for a Waiver:
But, there are circumstances in which you do NOT need a Waiver for these offences. For example, there was a time when sexual assault, when tried summarily, carried only a maximum sentence of 6 months in jail. If you had only this on your criminal record, you would meet the exception rule and NOT need a Waiver. Likewise, evidence of intent to cause harm is not apparent from the Criminal Code of Canada, so you may be able to argue that you are not inadmissible to the United States for Uttering Threats or Assault with a Weapon (if established that harm was not intended).
Therefore, these offences are what we call the ‘gray area’. On the surface they may appear to be excludable and you may be denied entry for offences such as these, but you may have a strong case for not being inadmissible. We can help you get this sorted out so that you can avoid the risk of refusal.
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 as legal advice. Extreme caution must be exercised when determining your inadmissibility. It is advised that you talk to a United States Waiver Adviser to discuss your situation. Call 1-800-320-2477 toll-free for your free consultation. If calling from Calgary, please call: 403-229-2774.
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 Involving 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.)
Offences like failure 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 CIMTs ordinarily do not render you excludable to the United States. Finally, there are instances where some of the convictions on the above list, though by definition are CIMTs, may NOT result in inadmissibility to the United States.
Medical Inadmissibility – you might have several convictions (such as impaired driving) which suggest you suffer from alcoholism. It is possible you could be denied entry for medical reasons if the U.S. authorities believe you pose a serious risk to the United States. You could be asked to undergo medical testing to determine if you are a medical risk to the United States.
Convictions are tried either summarily or by indictment. Some convictions are always summary (i.e. causing a disturbance) and are considered minor offences. Other convictions are always indictable (i.e. break and enter into a dwelling house, 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. Each individual case may vary, leaving some clients inadmissible to the U.S. (because the Crown proceeded by indictment) and others admissible (because the Crown proceeded summarily), even though they have the same conviction.
To determine whether your conviction is summary or indictable, you will need to refer to your Court Document or you may contact our office.
CAUTION: PLEASE CONTACT US IMMEDIATELY IF YOUR CONVICTION WAS DEEMED INDICTABLE (IE. THERE WAS NO ELECTION) AND YOU WERE TRIED IN PROVINCIAL COURT.Free Consultation 1-800-320-2477 (Calgary: 403-229-2774)
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 be 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. You need to apply the same admissibility rules to discharges as are applied to convictions. For more information on discharges, please visit our information page on conditional and absolute discharges.
You need to apply admissibility rules to the following:
If you committed an offence, but were never convicted, you could still be denied entry to the United States and may still require a United States Waiver.
The most common examples of this are when the Port of Entry Officer asks “have you ever smoked pot?” or “have you ever been arrested, charged or fingerprinted?”. If you answer yes (even though you were never convicted or discharged or charges were withdrawn/dismissed, etc.), and describe anything which would suggest that you may have committed an excludable offence, you could be deemed inadmissible.
Charges are not ordinariliy accessible to the U.S. after dropped, withdrawn, dismissed, etc. However, the U.S. may be able to access this information if charges are pending or the discharge has not yet been purged from your record after the one or three year waiting period...
NOTICE: As a result of Bill-C10, the Record Suspension replaced the Canada Pardon on March, 13 2012. The term Pardon is used interchangeable with the term Record Suspension.
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 any Other Countries?
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.
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 can easily be revoked. The following are FALSE ASSUMPTIONS (Fiction) which are followed by the FACTS:
Currently, only 1-year to 5-year United States Waivers are issued. Permanent United States 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.
Note: Technically the I-175 card is no longer valid. But the 2-3 page document you received with it (I-192 United States Waiver) is still valid. You should travel with the I-175 border crossing card and I-192 United States Waiver. In the event the I-175 border crossing card is taken for no other reason other than the border guard states it is not longer valid, as long as you still have your I-192 United States Waiver document you should be okay to travel. If this too is taken for no reason (ie. you have not done anything new to make yourself inadmissible since it was granted) then the revocation was likely in error and you can apply to have it replaced.
8CFR section 212.4(c)(3)(ii) states:
Free Consultation 1-800-320-2477 (Calgary: 403-229-2774)
(iv) An authorization that was previously issued in conjunction with Form I-185, Nonresident Alien Canadian Border Crossing Card, and that is noted on the card may remain valid. Although the waiver may remain valid, the non-biometric border crossing card portion of this document is not valid after that date. This waiver authorization shall cease if otherwise revoked or voided.
In Matter of Hranka, 16 I&N Dec. 491 (BIA 1978), the decision to refuse or grant your United States Waiver Application is based on the following three factors:
We work with you to ensure as much as possible that your United States Waiver Application is strong in all three areas. In the event your application is not strong enough in one area, it is possible that if the other two areas are sufficiently strong, that you may be able to overcome the area which may be lacking. If we feel your United States Waiver application is unlikely to be granted based upon the criteria identified in the Hranka case, we will be truthful with you and advise as to how long we think you should delay your file or what you can do to strengthen any of the three areas to improve your chances.
Since 1987, processing times for United States Waiver Applications have fluctuated from as few as 3 months to as long as 2 or more years (the granting office moved 3 times within 5 years and this caused serious backlogs). DO NOT wait until the last minute to apply for a Waiver. You may need to apply at least 8 to 18 months in advance of your scheduled trip. If you have a serious record involving sexual assault and/or drug trafficking, it could take longer than 18 months for your application to be completed.
United States 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, but only at the discretion of U.S. Customs and Border Protection.
If your situation qualifies as an emergency, you may still be refused a Port Parole (and United States 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.
There is a high degree of unpredictability with Port Paroles. I have had clients experience situations that were clearly urgent and worthy of approval (such as visiting a dying parent) that were denied and situations which were not urgent (such as attending a Pool Tournament) that were granted. The decision to grant a port parole is made by the officer present at the time of the emergency at the port where the applicant will be entering.
Port Paroles are also not to be used to circumvent the United States Waiver process. If the border guard feels you had plenty of time to apply for the United States Waiver your Port Parole may be denied. There is a better chance that your Port Parole will be approved if your United States Waiver application has been submitted and is waiting for approval.
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.
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 (excluding the United States) this obstacle will be removed once you obtain a Canadian Pardon (now called a Record Suspension). For more information on Pardons/Suspensions, please contact us.
NOTE: If you are inadmissible to the United States, you cannot travel to a foreign country via the United States (i.e. stop-over in the United States) unless you have a United States Waiver of Inadmissibility. In some cases, you may even be denied entry on a plane that flies over USA Airspace. Based upon my observation, this is only likely to happen to the most serious of offenders or individuals on the no-fly list (i.e. members or suspected members of gangs such as Hell’s Angels or Terrorist Organizations).
My name is Debbie Ward. I have been assisting individuals with Pardons and United States 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 10 full-time staff members. My credentials are as follows:
There are several reasons why you should hire our company to assist you with your United States Waiver:
Legal Information is Not Legal Advice. This article does not constitute as legal advice. Legal information is subject to change at any time. Legal advice may vary based on individual circumstances. The above information is general in nature and may not be applicable to your individual circumstances.