Did you know that your criminal record may prevent you from entering the United States (US)? At Nova Terra Law we know that crossing the border can be stressful, but it does not have to be.
Now at this point, you may be wondering:
- What is a criminal record?
- Should I be concerned?
- How far back does it go?
- What about summary, expunged, or cannabis offences?
Let’s take a look at each of these below.
What is my criminal record?
For immigration purposes, your criminal record is a list of all your contact(s) with the criminal justice system. This means even if you are not convicted, it was expunged, or if it took place outside of Canada, it is still relevant to immigration.
What can the US Customs and Border Patrol (CBP) Officers access?
CBP has had access to both the Advance Passenger Information System (APIS) and the Canadian Police information Centre (CPIC) since 2010. APIS contains most information found on your passport, and CPIC is the criminal database maintained by the Royal Canadian Mounted Police (RCMP). Keep this in mind when crossing a Port of Entry (POE).
Will any crime make me inadmissible?
No, not all crimes are equally weighted under the Immigration and Nationality Act (INA) for immigration purposes. Instead, under the INA the principal concern is Crimes Involving Moral Turpitude (CIMTs) and any controlled substance violations (see INA Sect. 212(a)(2)). And while there are many CIMTs, each generally involves either an element of fraud, violence, or property damage.
For example, here are some CIMTs:
- Crimes Involving Fraud/Dishonesty
- Bribery, Counterfeiting, Embezzlement, Forgery, Fraud, Gross Indecency, Perjury, and Tax Evasion.
- Crimes Involving Violence/Criminal Activity
- Arson, Assault with Intent to Kill/Rape/Robber, Assault with a Deadly Weapon, Blackmail, Burglary, Extortion, Kidnapping, Manslaughter, Mayhem, Murder, Prostitution, Rape, and Robbery.
- Crimes Involving Property Damage
- Larceny (Grand or Petty), Mail Fraud, Malicious Destruction of Property, Knowingly Receiving Stolen Goods, Theft, and Transporting Stolen Property.
Please note, these are not usually considered CIMTs:
- Breach of the Peace, Breaking and Entering (without Intent of CMT), Carrying a Concealed Weapon, Damaging Private Property (without Intent to Damage), Disorderly Conduct, Driving while License Suspended/Revoked, DUI/Reckless Driving, Escape from Prison, False Statements (not Perjury/involving Fraud), Firearm Violations, Gambling Violations, Immigration Violations, Juvenile Delinquency, Minor Traffic Violations, Possessing Stolen Property (without Guilty Knowledge), Smuggling (without Intent to Commit Fraud), Tax Evasion (without Intent), and Trespassing.
Will a DUI make me inadmissible?
A single DUI or summary offence is unlikely to deny you entry to the US. However, you may be denied entry if you have multiple summary offences, DUIs, or a DUI and a summary offence.
Do I need to worry about cannabis?
Possibly. Before October 2018, Canadians who admitted to consuming, investing in, or being involved in the cannabis industry were often denied entry. This is mainly because cannabis is a schedule one controlled substance under US federal law, which controls all POEs and border crossings. After October 2018, CBP announced it will shift its focus from all cannabis involvement to those specifically travelling to the US for cannabis-related reasons. We advise all people to exercise caution and to carefully weigh this policy change. Cannabis policy remains a changing area of law and is further complicated by the growing number of states that continue to legalize recreational and medical cannabis.
For reference, as of February 2023, cannabis has been legalized in AK, AZ, CA, CO, CT, IL, MA, MD, ME, MI, MO, MT, NJ, NM, NY, NV, OR, RI, VA, VT, and WA.
If I have a criminal record, what are my options to visit the US?
For most cases of criminal inadmissibility as a nonimmigrant, you will need an INA Sect. 212(d)(3) waiver, or “Hranka Waiver.” First, you will need to show you qualify for the underlying nonimmigrant visa you seek. Fortunately, for most Canadians this is a non-issue due to the Visa Waiver program. However, if you are either non-Canadian, or seek temporary entry that requires a nonimmigrant visa, like for work or study, you will have to show you qualify for that visa before being granted a waiver. Next, your waiver request is prepared for filing. You can file at either the US Consulate or the POE/US-Canada border.
In addition to the $585 (USD) filing fee, the request should include:
- Application for Advance Permission to Enter as a Nonimmigrant (form I-192),
- Documents proving your citizenship,
- Fingerprint Chart (FD-257 form) to be completed by a CBP Officer,
- A completed G-325A (Biographic Information form),
- An RCMP or police certificate,
- Official police and court records,
- A personal statement signed by you explaining the circumstances of each arrest, conviction, and sentence or fine imposed, as well as any evidence of reformation or rehabilitation, and
- Any character references or rehabilitation documents you have.
How long does a waiver take to be issued?
There is no set number of days that your waiver must be processed by, but you can generally expect between three and six months. Your initial waiver is usually good for one year and may be good for five years upon renewal. For this reason, you should try to make your waiver request as early as possible to ensure your US travel plans are not delayed.
If you need urgent processing, you may apply for humanitarian parole. If granted, this will give you temporary permission to enter the US for humanitarian reasons during the pendency of your waiver application.
Are there any exceptions to the waiver requirement?
Yes, even though you have a CIMT, you may still be allowed entry without a waiver under the petty offence exception (see INA Sect. 212(a)(2)(A)(ii)(II)). To qualify for this waiver, you need to show:
- The maximum penalty is no more than one year,
- The sentence is no more than six months imprisonment,
- It is not a controlled substance violation, and
- It must be your first CIMT.
Need additional help?
At Nova Terra Law, we know that waivers for criminal inadmissibility can be complex, stressful, and difficult to navigate. But we are trained on these matters and can help you. If you need further advice or have questions regarding US immigration law, contact James Hayes today. As a dual-licensed US and Canadian lawyer, he can help you with your many immigration questions on both sides of the border. He offers his services in both English and French.
Disclaimer:
This written article is solely for informational purposes. It is not legal advice and does not make any guarantees or conclusions. Each case is examined individually. Please contact our office for additional information and tailored legal advice.