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I am a Canadian citizen and have a criminal record. How can I get admitted to the United States as a visitor?

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Canadian citizens are normally allowed to enter the U.S. as visitors without needing a visa, and can stay for up to 6 months upon entry. However, Canadians are also subject to the requirement of admissibility. This means that a customs and border protection (CBP) officer can refuse to let you in at the border if any of the grounds of inadmissibility apply.

If you have a criminal history, this can be one of the reasons you may be found admissible. This can either be through having a record of conviction of more than 6 months for a crime that the U.S. immigration law sees as a “crime involving moral turpitude” or conviction of a drug-related offense. These are permanent bars for admission, so if this is the case, you may need to apply for and obtain a waiver before attempting to enter the U.S. as a visitor. Here is a breakdown of the steps involved.

Check if you qualify under any of the exceptions

First, if you only have one conviction which falls under the category of “crime involving moral turpitude,”  it is worth checking if your single conviction qualifies under any of the exceptions to inadmissibility. When you committed that crime while you were under 18 years old and 5 years has passed since you finished serving your sentence, you are exempt. Another is the “petty crime” exception, when the maximum penalty possible for that offense is less than 1 year of imprisonment and you actually were sentenced to 6 months or less.  No matter what the crime, you can almost always apply for a waiver if you are applying under a non-immigrant category.

Applying for a Section 212(d)(3) Waiver

If you believe you are inadmissible for either a CIM,  controlled substance offense, or other matter, you need to obtain a waiver to enter the U.S. For Canadians seeking to enter the U.S. as visitors, the 212(d)(3) Waiver is what you need. A “waiver” is a document that allows you to enter the U.S. despite the inadmissibility.

To obtain this waiver, you can work with an attorney to file a Form I-192 with the appropriate fee and supporting documents. Canadian citizens can file the application package in person at a designated port of entry, which must be done in advance of travel. At the time of submitting the package, the applicant will be fingerprinted and pay the processing fee.

How long does it take to obtain this waiver?

Upon submission at the border, waiver applications are forwarded to Admissibility Review Office (ARO), which commonly takes between 3-6 months (or longer) to process. Ask your attorney to follow up with the ARO about the status of your application if 150 days has passed after your submission and you have not received a response.

What are the criteria for approving or denying a waiver application?

Like many immigration benefits, waivers are discretionary. There is no guarantee that you will be granted a waiver. However, to maximize your chances at approval, it is instructive to consider which factors the ARO considers important.

212(d)(3) waiver applications are governed by the precedent Board of Immigration Appeals (BIA) case, Matter of Hranka. Decisions to approve or deny a waiver application will be made on a case-by-case basis on balancing three factors:

  1. The risk of harm to society if the applicant is admitted;
  2. The seriousness of the applicant’s prior immigration law, or criminal law violations, if any.
  3. The reasons for wanting to visit the U.S.

It takes strong advocacy to prepare a persuasive waiver application and there are specific documents that you need to submit as a part of your package. Be sure to consult with an attorney if you are considering applying for this immigration benefit in advance of your next visit to the U.S.

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