I was denied entry into the U.S. due to a criminal conviction. I applied for a waiver, but it was only valid for one (1) year. Since I am 76-years-old, is there a more permanent solution?

Question:

Dear SRW Border Lawyers,

I am a Canadian citizen, and I live in Manitoba, Canada. In 1982, I made the terrible mistake of removing 5 rotary tables (each valued at approximated $50,000) from my business. The reason I took the tables, although well intentioned, in retrospect, was foolish. My company had fallen on hard times and it was eventually taken over by a bank. As a result of the take over, I had to fire all of my employees, which was incredibly difficult to do, but it was my only choice. I discussed with my employees how I could compensate them for some lost holiday pay, which the bank was unwilling to pay. As a result, I decided that I would take 5 rotary tables from the shop, sell them, and pay the employees with the proceeds. The rotary tables were sold to a company in California. Following the purchase of the tables, an employee told the police of the transaction and I was arrested and charged with theft. At my trial, I was prepared to plead not guilty, but my lawyer advised me to plead guilty as charged. I was convicted and ordered to serve 15 months in jail. I served half of my sentence in jail before being paroled for the remainder of the time. I know that taking the tables was wrong, but I did it to support my employees and their families. I have since restarted my business and it is financially sound and successful.

Three years ago, I tried to enter the United States, as I had done many times before, to attend an industry trade show. My line of work requires that I travel to the United States to inspect possible equipment before I purchase anything. At the border, the officer questioned me about the conviction. The officer informed me that due to my criminal conviction in 1986, I can no longer enter the United States without first obtaining a Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. I couldn’t believe after such a long period time of going back and forth across the border that I was now being denied entry! Beyond the 1986 conviction, I have no other criminal record whatsoever!

Several months after my denial, I applied for the waiver and was later approved for one (1) year. The waiver has since expired. Because I am advanced in age, is there a more permanent solution to my problem? I do not want to continue to apply for waivers, especially if I am going to be issued waivers that only last for one (1) year at a time.

Answer:

Thank you for your question.

We are hearing more and more cases of individuals who are being denied entry into the United States after years of unfettered access. The denials are often based on a single conviction that occurred over 20 years ago. One reason for these types of denials is the fact that local law enforcement agencies are now able to access records that they were previously unable to.

As you already know, certain criminal convictions can prevent you from entering the United States, unless you first acquire a nonimmigrant waiver. Based on the date of conviction, type of conviction and circumstances surrounding the conviction, we sometimes recommend that a client consult with an experienced criminal attorney to review his or her criminal history to determine if there were any legal or technical defects in the underlying criminal proceedings. If so, it may be prudent to discuss attempting to vacate his or her previous criminal conviction. Current legal precedent states that a vacated conviction will no longer count for U.S. immigration purposes if the conviction was vacated because of some type of legal or technical defect during the criminal proceeding (e.g. ineffective assistance of counsel). A vacated conviction solely to circumvent the immigration consequences of the conviction will be insufficient to remove the immigration consequences.

In order to determine your best strategy moving forward and provide you with a thorough professional analysis, we would recommend that you schedule a consultation with our office. Should our review determine that continuing to file for your waiver is your only option – there is one glimmer of hope. While the Admissibility Review Office (ARO), the office which adjudicates these waiver applications worldwide, initially grants the waiver for a period of one (1) year, subsequent waivers can be approved for up to a five (5) year period, thereby easing the burden with reapplying. Thus, we can discuss with you potential methods to request that your next waiver be approved for a longer period of time.

We look forward to speaking with you and assisting you with your U.S. immigration matters.

I was convicted of 2 minor drug charges (possession) in Canada, but the convictions were pardoned in 1994. Do you think my case is likely to be approved for an I-192?

Question:

I have a situation that requires a nonimmigrant waiver. I am a Canadian citizen and currently live in Montreal, Quebec. Twenty-five years ago I was convicted for 2 minor drug charges (possession), but the convictions pardoned in 1994. I am seeking help with preparing a Form I-192 waiver and found your website on the Internet. Do you think my case is likely to be approved?

Can you tell me if, when depositing the waiver package at Port of Entry, Customs and Border Protection officers inquire about the facts of my previous convictions or do they simply verifying that the waiver is complete? I do find this whole thing intimidating.

At this point in time, I am collecting documents (RCMP, court documents-indictment-conviction-minutes of trial). If I chose to move forward with your assistance, the documents that I would be providing will be mostly in French. I hope this is not a problem.

Finally, since my record is sealed, it is not visible to law enforcement in Canada. My question is what will happen to my waiver application when it is submitted to the Admissibility Review Office? Will the information in the application be disseminated to other jurisdictional systems? I am concerned that a possible background check may reveal my previous conviction and jeopardize my job or future promotions.

Answer:

Thank you for contacting SRW Border Lawyers. As you are likely aware, Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, whether it be as a visitor for pleasure, business visitor or under a non-immigrant employment category (TN, L-1, etc.) must first apply for a nonimmigrant waiver (Form I-192). Due to your two (2) previous minor drug convictions, you are most likely inadmissible to the United States INA §212(a)(2)(A)(i)(II) and require a nonimmigrant waiver under INA §212(d)(3).

Our Services

Since the facts and circumstances of each waiver case is different, SRW Border Lawyers makes it a practice to first review each case in detail before confirming that a waiver is necessary. For example, we would want to know how old you were at the time of these convictions and how these proceedings were handled – and confirm whether you truly have a ‘conviction’ for immigration purposes. A consultation provides us the best opportunity to review each aspect of a case and address any issues or concerns you may have. Once we confirm that a waiver is necessary, we will assist you with collecting all necessary documents, complete all forms, and prepare a detailed legal brief outlining your eligibility for the nonimmigrant waiver under precedent case law.

Our firm has prepared numerous nonimmigrant waivers for clients throughout Canada, and each case brought with it a different set of facts and varying degrees of complexity and seriousness. While we never guarantee that a waiver application will be approved, we never take a case that we believe has little or no chance of succeeding.

Based on the information you provided in your email, there appear to be a number of favorable factors in a prospective nonimmigrant waiver application on your behalf. Your convictions, presumably the only ones you have, were from almost twenty-five years ago and you have not shown a history of recidivism. Other factors we would want to stress is how you have been a productive and respected member of society. Additionally, were you granted a pardon or was your case just sealed? If granted a pardon, we would want to highlight the favorable treatment you have received from your own government. As far as your French documents, generally, they would need to be translated before being submitted with your nonimmigrant waiver application. We sometimes obtain fee quotes for our clients from our third party vendor and let our clients choose how to proceed regarding the translations.

Submitting A Waiver Application at a Port of Entry

Submitting your waiver application at a port of entry is limited to paying the appropriate government fee and submitting your application. This is not a time where Customs and Border Protection officers address the merits of your waiver or question you about your previous convictions.

Admissibility Review Office (“ARO”)

The extent of the Admissibility Review Office’s (ARO) information dissemination is unknown. Once a waiver is filed, the agency provides little insight on the process other than providing (often incorrect) timetables for adjudication. In recent years, there has been a trend toward consolidating data among law enforcement agencies throughout Canada and the United States; however, we have yet to encounter an issue similar to the one you describe in your question.

Please continue to collect the documents that you outlined in your email (i.e., RCMP, court documents, certificate of disposition, minutes of trial). In the meantime, if you have any additional questions or concerns, or would like to set up a consultation to speak with us to discuss the specifics of your case, please call our office. We look forward to speaking with you.

Canadian Snowbird's I-192 waiver is Approved by Admissibility Review Office ("ARO")

Application Type: I-192

Adjudication Time: 153 Days

Adjudicating Agency: Admissibility Review Office (Filed @ Peace Bridge Port of Entry in Buffalo, New York)

Grounds of Inadmissibility: INA §212(a)(2)(A)(i)(I) – Conviction for Crime Involving Moral Turpitude (1978 Conviction in Toronto, Ontario, Canada – Uttering a Forged Document)

Purpose of Entry into U.S.: Pleasure Visits [B-2] – Visit with family in the U.S. & Vacation to the U.S. [Canadian Snowbird!]

SRW Strategy: Evidence of Rehabilitation (no criminal issues since 1978, compliance with terms of previous waiver approval).

Approval Period: Five (5) Years

Canadian Citizen Receives Third I-192 Waiver Approval!

Just this week, the SRW Border team received an approval notice from the Admissibility Review Office (ARO) confirming that our client’s third I-192 waiver application had been approved!  

Our client requires this non-immigrant waiver because he is inadmissible to the United States under INA §212 for a 1994 conviction for Accessory After the Fact and Theft Over $1,000 under the Canadian Criminal Code. Despite the fact that it has been over eighteen years since this foreign conviction, he continues to require a non-immigrant waiver to enter the U.S. (the passage of time does not abolish or forgive his conviction under U.S. immigration law).  

In adjudicating I-192 waiver applications, the Board of Immigration Appeals (“BIA”) has articulated three factors to be considered by the ARO: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration or criminal law violations; and (3) the nature of the applicant’s reasons for wishing to enter the United States.  Click the following link for additional information on I-192 waivers: Form I-192.

When preparing his waiver renewal application, we prepared a thorough legal brief which addressed the factors set forth by the BIA and applied the factors to our clients situation.  Specifically, we explained the clients background and the circumstances that led to his being inadmissible to the U.S., highlighted his successful rehabilitation and remorse for his actions, confirmed his previous waiver approvals and ongoing compliance with U.S. immigration laws, and explained his continued desire to enter the U.S. to see his family.  Our client can now continue entering the U.S. for business visitor and leisure activities.