When crossing into the United States with a criminal record, there is always a risk that an individual may be denied entry. Not all criminal charges disqualify an individual for entry and a criminal record check will not necessarily be run for every person attempting to cross. However, when an individual’s criminal record has been accessed it is documented and kept in the US system indefinitely, meaning it will be noted every subsequent time they try to cross the border. A US Entry Waiver grants advance permission to enter the US, guaranteeing that the individual will not be denied entry due to their criminal record.
What Kind of Charges Can Lead to Denial of Entry?
Not all criminal charges will automatically deny entry into the US. However, because border agents have absolute discretion to deny entry for
any reason, it is still possible to be refused entry on the basis of a crime that is not automatically grounds for inadmissibility. To eliminate this risk, it may still be beneficial to apply for an entry waiver for charges that are not within these categories. If the crime is not grounds for inadmissibility, the individual will receive an official letter stating this fact which can be presented at the border to guarantee that they will not be turned away on the basis of their criminal record. Unlike an entry waiver, this document does not expire.
Criminal restrictions on entry usually fall into three categories: crimes of moral turpitude, multiple convictions, and controlled substance charges:
[1]
Crimes of moral turpitude have a somewhat flexible definition and are classified based on the statute under which the individual was charged, rather than the specific circumstances of their conviction. They fall into four general categories, each of which is sufficient to deny entry: crimes against property involving fraud (like theft); crimes against the authority of the government (like bribing an official); sexual or family crimes (like spousal or child abuse); or crimes against a person that are defined as morally reprehensible by the state or show either criminal intent or recklessness (like assault with a weapon).
[2]
Multiple convictions of any kind with a combined sentence of 5 years or more are sufficient to deny entry to the US.
Controlled substance offences of any kind are also sufficient to deny entry to the US. Although cannabis is decriminalized in Canada and parts of the US, an individual can still be denied entry if they have a prior cannabis-related conviction. Furthermore, entry may still be denied without a conviction to an individual that admits to possession of cannabis, working in the cannabis industry, or even smoking cannabis in the past.
Exceptions include
:[3]
- “Petty offences” with a maximum possible penalty of under 1 year imprisonment and a sentence of 6 months or less (even offences of moral turpitude).
- Crimes committed while the individual was under the age of 18 and a minimum of 5 years before entry to the US.
- “Purely political offences,” including convictions based on baseless, trumped up, or fabricated charges; acts directed at the state containing no element of ordinary crimes; and common offences so connected to a political act that the offence may be regarded as political.[4]
The Application Process
Obtaining an entry waiver can be a long process, often taking 1.5-2 years between compiling the application and processing time. It typically takes 6-18 months for Homeland Security to process an application once submitted, depending on its complexity.
A number of documents must be compiled to submit an application. The most time-consuming parts of the application process are obtaining a criminal record check from the RCMP and an official court record of each conviction from the court of conviction, each of which can take weeks to months. Applicants must also compile proof of citizenship, biographic information, and a signed statement explaining the circumstances of their charges and the rehabilitation and/or reformation of character that they have undergone since. Letters from three character references, although not strictly mandatory in all cases, can also increase the chances of an entry waiver being granted by supporting the personal statement. Similarly, a statement of purpose for travelling to the US can add specificity to the application. Lastly, a scan of the applicant’s fingerprints must be taken by a border agent at the time the application is submitted at a designated port of entry (listed
here).
Factors Affecting the Application
Unlike the
Canadian record suspension process, the entry waiver application process does not have specific waiting periods and eligibility criteria. However, certain factors may affect an individual’s chances of being granted a waiver, including the nature, number, and recency of the charges; the applicant’s personal history; the degree of rehabilitation or reformation of character that the applicant can demonstrate; the applicant’s current degree of social integration and financial status; and their reason for wanting to enter the US. The Application Review Office provides reasons if it proposes to deny the application and the applicant is able to respond to the proposal.
Duration of a Waiver and Renewals
Entry waivers are issued for periods ranging from 6 months to 5 years depending on the above factors and whether it is a new entry waiver or a renewal. In most cases, an entry waiver allows the individual to travel freely until it expires. It is recommended that individuals apply for renewal before the previous waiver expires so that the new waiver will apply immediately after the first expires. Although a renewal requires new documentation, the processing time is typically lower and the application is more likely to be accepted. Renewed waivers also tend to be issued for longer durations.
As noted above, applications for entry waivers where the individual’s charges do not fall into one of the prohibited categories will return an official letter certifying that their record does not make them inadmissible. This letter has no expiration date and will essentially act as a permanent entry waiver unless the individual is convicted of another crime.
Is an Entry Waiver Still Necessary After a Receiving a Canadian Record Suspension?
An entry waiver is still necessary even after receiving a Canadian record suspension. The US does not recognize Canadian record suspensions and, although they prevent border agents from accessing the sealed record on subsequent trips, the file will remain in their database if the record was accessed before it was sealed.
[5] Border agents may ask questions based on that file, and dishonesty may result in being denied entry. In these cases, it is best practice for an individual to apply for an entry waiver even after securing a record suspension to eliminate the risk of being denied entry due to their criminal record.
That said, a record suspension can still be beneficial when applying for an entry waiver. Although a record suspension does not guarantee that an entry waiver will be granted, it demonstrates that the recipient is taking positive steps toward rehabilitation and has reformed their character since the time of their conviction. Furthermore, many of the same official documents are required for both applications, so it can be faster and more cost-efficient to seek both at the same time.
Entry Waivers and Absolute and Conditional Discharges
Although absolute and conditional discharges are not technically convictions, they are still a finding of guilt that will show up on a background check during their active period. Border agents may choose to treat them as a conviction and, depending on the underlying charges, treat them as a reason to deny entry while they are still active. As with a record suspension, if an individual’s criminal record was accessed by a border agent during this active period, the file will remain in the US database indefinitely. Similarly, it may still be prudent for an individual to seek an entry waiver if their file was accessed while their discharge was still active, even if it has since been sealed.
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[1] Immigration and Nationality Act, Title 8-Aliens and Nationality, Chapter 12-Immigration and Nationality, Subchapter II-Immigration, Part II-Admission Qualifications for Aliens; Travel Control of Citizens and Aliens, ss1182(a)(2)(A-I) [
INA].
[2] US Citizenship and Immigration Services,
Policy Manual Chapter 5 – Conditional Bars for Acts in Statutory Period (2023), online: https://www.uscis.gov/policy-manual/volume-12-part-f-chapter-5
[3] Immigration and Nationality Act, Title 8-Aliens and Nationality, Chapter 12-Immigration and Nationality, Subchapter II-Immigration, Part II-Admission Qualifications for Aliens; Travel Control of Citizens and Aliens, ss1182(a)(2)(A)(i, ii).
[4] Matter of O’Cealleagh, 23 I&N Dec 976 (BIA 2006) at para 5.
[5] Government of Canada
, Got a Question About Your Application? (2022), online: https://www.canada.ca/en/parole-board/services/record-suspensions/got-a-question-about-your-application.html.
