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U.S. Entry Waiver Rules, Legislation and Impact Regulation

What is a U.S. Entry Waiver

A U.S. entry waiver is a document intended to grant a Canadian citizen with a conviction entry into the United States. This document is issued by the Department of Homeland Security (DHS), and removes all risk of being stopped and denied entry at the border.

Since border guards perceive the DHS to be a “superior governing body”, a U.S. entry waiver supersedes any discretion the guards might have when you attempt to cross the border.

This document is only valid for a limited amount of time, usually between one and five years, though it can be renewed by the U.S. Government. The length of the waiver typically depends on the severity of the crimes you were convicted for, as well as the time that has passed since the conviction.

When looking to renew your U.S. entry waiver, it is best that you start the process about six months before the expiry of your current document.

Instances When You Need a U.S. Entry Waiver

Many Canadian citizens don’t realize that they are inadmissible to the U.S. if they have a criminal record, medical report, were deported, or have overstayed their welcome. The only solution to these restrictions is a waiver application to the DHS.

This situation is even more confusing when you consider that many people have crossed the border multiple times before without any issues until the one time that they get stopped. Even 20 year old criminal records can cause a border agent to deny you entry into the U.S.

This can be very troubling for the many people who travel to the U.S. for various reasons including family, work, and recreation. It’s very frustrating when you no longer have the ability to move around freely. Fortunately, a U.S. entry waiver can easily override the reason for refusal.

Do You Also Need A Record Suspension?

First, it’s important to note that a record suspension or pardon is not recognized by U.S. border guards. These guards are permitted by U.S. law to deny anyone entry for any and all convictions that show up in their criminal record without considering the details of the crime or crimes. So, if you have ever been stopped at the border, you will still be refused entry to the U.S. even if you obtain a pardon. The only way to gain entry is through a waiver.

Second, you don’t need to obtain a pardon before applying for a U.S. entry waiver. If you have a Canadian criminal record but need to travel to the U.S., you can simply apply for the waiver so you’re not denied entry.

That said, if you have not been pardoned, and the obligatory amount of time has elapsed, you should also consider applying for a record suspension.

U.S. Entry Waiver Denial

Note that your application for a U.S. entry waiver can be turned down by the U.S. government if you are perceived to be a high-risk to reoffend. This usually happens for individuals with multiple drug trafficking or sex-related offences. Entry can also be denied depending on the gravity of your prior criminal violation; the likelihood that you will harm society if admitted; and your reasons for seeking entry.

What Are The Rules/Laws

The U.S. law has room for exceptions to the criminal inadmissibility rule, though it is not applied reliably in our opinion. This is what we mean:

Only criminal convictions are supposed to lead to criminal inadmissibility (implying that the accused was found guilty and convicted, as opposed to being dismissed, discharged, etc). However, this part of the rule is not applied evenly. We have received clients who have been denied entry for criminal charges that did not lead to a conviction.

We advise all people with a record or arrest showing on their criminal abstract to stay away from the border until the problem has been remedied. It is not a good idea to rely on the U.S. border guard to distinguish between a conviction and non-conviction, unless the only charge you have is a DUI, since this is the only offence that can be permitted at the U.S. border.

Here are the most common criminal restrictions:

  • Crimes of moral turpitude – the ones that would make you inadmissible include murder, rape, manslaughter, bribery, theft, forgery, fraud, prostitution, and aggravated battery
  • Drug possession and trafficking of controlled substances
  • Multiple convictions of any kind (in which case crimes such as breaking and entering, driving under the influence, simple assault, and disorderly conduct would make the person inadmissible to the U.S.)
  • Involvement with terrorism or terrorist organizations
  • Trafficking persons
  • Involvement in money laundering

It is not unusual for a person to be refused entry for offences that are not considered crimes of moral turpitude, especially if multiple convictions are involved.

The only way to protect yourself when crossing the border is to:

  1. Have zero criminal information linked to your mane
  2. Have a valid U.S. entry waiver

Otherwise, you would risk getting stopped and refused entry at the border.

Anyone Is Eligible For A Waiver

Although the Canadian government has stringent rules with regard to applying for a Canadian record suspension or pardon, the same does not apply to obtaining a U.S. entry waiver.

Depending on the offence that caused you to be inadmissible into the U.S., and if you’re a class of non-immigrant where a visa is not mandated (most Canadian citizens), or perhaps you’re a non-immigrant with the correct documents who subsequently becomes admissible, you are eligible to apply for a temporary waiver of inadmissibility before your travel.

Additionally, the temporary waiver application, Form I-192, which is the Application for Advance Permission to Enter as Nonimmigrant, can be used by any Canadian citizen with a criminal record to apply for a Canadian pardon.

Every Canadian is eligible to apply, except those who are currently facing charges in court or currently serving a sentence.

It’s hard to believe that the U.S. DHS has no problems with granting a waiver to an individual who has recently been convicted of a serious criminal offence, but this is actually true. The U.S. government does not intend to keep responsible and law-abiding Canadians from getting into the country, but if they’re uncomfortable, your permit will be limited to one or two years, with the maximum being five years.

Why Should I Apply for a U.S. Entry Waiver?

There are a number of reasons why you may be denied entry into the U.S.:

  • You have a criminal record
  • You have a medical condition – communicable disease
  • You’ve overstayed your welcome
  • You have been deported

When you become inadmissible for any of these reasons, it means that you cannot cross the U.S. border for any reason, including family, work, or recreation without first obtaining a U.S. entry waiver.

What Happens If You Get Caught?

The U.S. immigration officers are increasingly asking for identification in order to conduct an RCMP computer criminal record search. If your record gets discovered, the immigration officer will then download your criminal record into the U.S. computer system, resulting in an FBI and an INS file. When this happens, the only way to cross the U.S. border is with a U.S. entry permit.

What to expect when:

1. Denied entry the first time:

The first time you get stopped at the U.S. border and your criminal record is discovered, you will most likely be detained for a short time by the immigration officer and denied entry into the U.S. You may also be photographed, fingerprinted, have your CPIC information downloaded to an FBI file, questioned, and then informed to obtain an entry waiver to get into the U.S.

2. Refused entry a subsequent time

If you get caught trying to get into the U.S. any other time without an entry waiver, you will probably be treated more harshly because you are knowingly trying to break an American law.

The U.S. immigration law permits the border officers to confiscate your property, which could include seizing your vehicle. You will also most probably be detained or incarcerated for entering the U.S. illegally.

You can suffer:

  • Embarrassment
  • Loss of travel expenses
  • Refused entry or voluntary departure
  • Arrest
  • Confiscation of property
  • Conviction
  • Deportation
  • Fines and/or incarceration
  • Inability to travel internationally via the U.S.
  • Missed business and/or vacation opportunity

People travelling to the U.S. with you at the time of arrest face the same risk as you because of inadmissibility. If you are travelling with a spouse, relative, or friend who is aware of your admissibility, and you don’t have a U.S. entry waiver, the person you’re travelling with could be subject to all the risks mentioned above, in addition to being charged and convicted with harboring you (an illegal alien). This offence will also make them inadmissible to the U.S.

If you’re travelling by bus, it is likely that the entire bus will be turned away, and if travelling by plane, your ticket will be stamped “VOID”, and you won’t be able to collect cancellation insurance – but this is the least of your worries.

Important Note

Although it appears as if you’re still in Canada while approaching the border, you will most likely be under U.S. jurisdiction when you interact with U.S. border guards and attempt to deceive them. If you’re forthright with them, you may probably only be denied entry without further consequences.

The Positive Impact On Your Life With a U.S. Entry Waiver

Acts of terrorism such as 9/11 and other international events have led the U.S. Department of Homeland Security (DHS) to take strict measures to increase border security services. So, if you are travelling to the U.S. and have a Canadian criminal record, the DHS can legally stop you from entering the country.

If you knowingly approach the border without a U.S. entry waiver, you expose yourself and your family/friends to not only a refusal of entry, but also confiscation of your property and incarceration of both you and your companions for entering the U.S. in an illegal manner and harboring an illegal alien, respectively.

Having a U.S. entry waiver eliminates the related risks of travelling to the U.S. with a criminal record. It reduces the risk of anything going wrong during a business trip or when going on vacation with your family.

You will not be arrested, handcuffed, detained, or convicted. You not only save yourself from the embarrassment, but also from wasting money and suffering other inconveniences such as:

  • Confiscation of your vehicle
  • Loss of travel expenses
  • Lost business opportunity
  • Fines
  • Missed vacation opportunity
  • Inability to travel abroad via the U.S.
  • Refused entry/voluntary departure

Basically, a U.S. entry waiver gives you the freedom to travel to and from the U.S., or through the U.S., for business or recreation without being considered a threat to Americans. Without the two pieces of paper that are presented to the Customs and Border Protection office while entering the U.S., you may travel to other countries with a crime record, but you can’t set foot inside the U.S. without landing in jail.

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