Entering the United States with a Criminal Record

People frequently travel to the United States for a variety of reasons, such as business, family matters, vacations, education, volunteering, and job prospects. Such travel is a privilege, and the relative freedom to do so is not to be taken lightly.

Sometimes the need to travel to the US can arise unexpectedly, so being prepared is a good idea. Anyone with a criminal record will more than likely be prevented from crossing the border due to concerns for public safety. The US government wants to be assured that anyone allowed to enter their country presents only a minimal risk. The United States exercises particular discretion regarding whom they allow to enter and routinely turn away people whose names they can match to one in their criminal record database, even if the offence was minor and committed a long time ago.

Deciding which applicant will obtain a US entry waiver (waiver of inadmissibility) is an arbitrary matter, and when considering an application, officials will take into account several factors, including:

• Risk an applicant presents to homeland security: Such factors as involvement with a terrorist organization or minimal effort to lead a law-abiding, settled lifestyle will naturally negatively affect the decision.

• Nature and gravity of offence: US authorities will understandably be more likely to issue a waiver to a person who has committed a less serious crime. This consideration, though, does not rule out the approval of more serious offenders.

• Reason for entering the US: Any of the above noted reasons are relevant; however, giving specific details on the application about the degree to which the reason is of significance to the applicant can influence the final decision.

• When offence was committed: Passage of time does allow for rehabilitation and reintegration and will probably positively affect the decision.

• Offender’s personal situation: Pressing matters such as a family member’s health or professional obligations can also positively affect the decision.

Here are some common concerns expressed by people wanting to travel to the United States, with helpful information:

• What makes a person inadmissible to the US? People are deemed inadmissible because of health related diseases, criminal grounds, and security grounds. Additionally, if you have been classed as an illegal immigrant or have violated immigration terms, you will be inadmissible. If you have a criminal record, you are not allowed even to fly over the United States – that is considered “entering” the US. A majority of flights out of Canada must fly over the US to access other countries. Even if you have received a pardon in Canada, the US can still see your record as the US Department of Homeland Security has full access to all the Canadian Police Information Centre records.

• Although I am considered “inadmissible,” why have I been able to travel to the states a few times? US border officials are not always able to run record checks each time you cross. However, if you are inadmissible, crossing without a waiver is a serious offence, which can result in the confiscation of your property or vehicle, arrest, detention, or deportation. Moreover, those travelling with you may be barred from ever entering the United States or charged with harboring a criminal, as well as being classed as inadmissible.

• I am HIV positive. Am I inadmissible to the United States? Since January 2010, people infected with the HIV virus are no longer inadmissible and can enter into the United States without problem and are no longer required to file Form I-601.

• How do I apply for a waiver? You must obtain an application form from the US Citizenship and Immigration Services website. You must also submit a U.S. Fingerprint chart FD-258 and a copy of your Canadian police record or a certificate of no record if applicable. If you have convictions from other countries, you must also submit the records to cover these. A copy of the official court record from the actual court of conviction indicating plea indictment, conviction, and disposition for each and every crime committed anywhere in the world. You must also enclose a personal declaration giving details about each arrest and evidence of reform and rehabilitation.

• Do I need to use a lawyer to get a waiver? You can apply on your own, but if you do use a lawyer or representative you must fill out Form G-28. Lawyers and representatives are not allowed to accompany their clients to waiver hearings.

• When can I apply for a US waiver? You can apply for a waiver at any time, although if you have an immigration violation against you, you may have to wait between 3 and 20 years before you are eligible to apply.

• How long will it take for me to obtain a US waiver? It takes around six months to a year to get a waiver. Most first time waivers are issued for one year, after which you will need to reapply.

• What must I prove when applying for a waiver? You must provide complete assurance that you are not a risk to US society. You can do this by proving that you have been on a rehabilitation course; that 15 years have passed since the action that made you inadmissible; that your absence would cause economic hardship to immediate dependents. The severity of your criminal or immigration crimes are taken into account when reviewing your waiver application along with your reasons for wanting to enter the United States.

• How and where should I submit my waiver application? You must submit your application in person at a US Customs and Border Protection Preclearance Center, many of which are located at ports of entry into the United States.

A large number of US Entry Waiver applications filed directly by individuals without assistance are rejected. Many people find the process time-consuming, difficult, and lengthy. Pardon Service Canada’s proven methods ensure that you receive the most professional, up-to-date assistance available.

Contact a Client Specialist at Pardon Services Canada who can provide you with the assistance you need.

Safeguard Your US Travel Plans

Canada’s close ties with the US – economic, political, and cultural – ensure that Canadians traveling to the US need to present only a valid passport when crossing the border. Nevertheless, any Canadian citizen with a criminal conviction who merely attempts to do so breaks American law. A criminal conviction must be disclosed to border authorities.

The Canadian Police Information Centre shares information on criminal records in Canada with the US Department of Homeland Security. A criminal conviction will more than likely show up during a background check at a border crossing point. Unless a traveler has a valid US waiver, as a minimum he can expect to be turned back and banned from entering the US. Not only will he risk refusal for entry, he could also face confiscation of property, including possible seizure of his vehicle. This includes any vehicle with a passenger with a criminal record, not just the driver. He can even be arrested and charged.

Even if, in the past, a person with a criminal record has crossed the border without complication as their conviction has not turned up, in this electronic age information is constantly being compiled and circulated. Nowadays, a background check can reveal decades-old convictions. As well, having received a pardon might not make a difference. Canadian pardons are not recognized by the DHS; and although the CPIC will not disclose a criminal record for which a pardon has been granted, the information might have entered the American database before the pardon was granted. Finally, attempting to cross the border in remote areas where there are no guards is ill-advised. Electronic sensors exist at many points to detect suspicious movement and alert authorities.

Consequently, Canadians planning to travel to the US should note the following:
 • A Canadian with a criminal conviction needs a US entry waiver of ineligibility from the DHS.
 • Apply for the waiver well ahead of time – the process can take up to ten months.
 • A person with a criminal record does not need to have received a pardon in order to apply for a waiver.
 • A person who has been granted a US waiver cannot be refused entry at the border.
 • A waiver is valid for a period of only one to five years, after which it will have to be renewed.

A waiver will allow a person to visit the United States without worry. If you need a waiver, Pardon Services Canada's role and familiarity with the process will ensure that all documents required are obtained in a timely manner and that your case is processed expeditiously. Contact a Client Specialist at Pardon Services Canada now to guide you through the process.