Entering the United States can be difficult for those with a history of criminal convictions or immigration violations in the past. For this inadmissible due to criminal violations for Crimes Involving Mortal Turpitude (CIMT) or previous immigration violations (misrepresentation, working without a permit, overstay) can apply for a non- immigration waiver to re-enter the United States.
Those who are inadmissible for entry to the United States can apply for a US Waiver of inadmissibility. Such waivers can be granted for one, two or five years depending on several factors such as the importance of the reason for entry, the severity of the crime or immigration violation, the number of crimes or immigration violations, and the length of time since the crime or immigration violation took place.
An applicant can apply for an I-192 non-immigrant waiver through a licensed United States attorney using the E- Safe platform. This application should be made taking into account the Hranka factors that weighs the importance of the trip verses the security threat from allowing the foreign national to enter the United States based on their past offences. It is highly advisable to use a licensed United States legal professional for this process.
Since the United States Department of Homeland Security (USDHS) has implemented the electronic E-Safe submission process regular applications have been typically processed between 40-60 days.
Crimes Involving Moral Turpitude
It is important to note that one does not necessarily need to have been convicted of a crime to be inadmissible for a crime involving moral turpitude (CIMT) if they have admitted to committing the act. This is most common in cases where an individual is found with or admits to the possession or use of a controlled substance. Even though cannabis is legal in many states, it is still considered a controlled substance under federal law and possession or use of it makes one inadmissible to the United States.
For individuals who have been convicted of a crime they are inadmissible to the United States if it is a crimes that involve moral turpitude where conduct is vile, depraved, and contrary to the accepted rules of morality and the duties to society in general.
Generally speaking these include but are not limited to:
- Abandonment of a minor child (willful and resulting in the destitution of the child)
- Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm
- Assault with a dangerous or deadly weapon
- Contributing to the delinquency of a minor
- False pretenses
- Gross indecency
- Harboring a fugitive from justice (with guilty knowledge)
- Incest (if the result of an improper sexual relationship)
- Larceny (grand or petty)
- Mail fraud
- Malicious destruction of property
- Manslaughter - Involuntary (where the statute requires proof of recklessness)
- Manslaughter - Voluntary
- Knowingly receiving stolen goods
- Rape (including "statutory rape" by virtue of the victim's age)
- Tax evasion (willful)
- Theft (with intention)
- Transporting stolen property (with guilty knowledge)
- Aiding and abetting, being an accessory, or conspiring to commit any of the above
List of Crimes NOT Involving Moral Turpitude
- Black market violations
- Breach of the peace
- Carrying a concealed weapon
- Disorderly conduct
- Driving while license suspended or revoked
- Drunk driving (DUI) or reckless driving
- Escape from prisonFirearm violations
- Juvenile delinquency
- Liquor violations
- Loan sharking
- Lottery violations
- Minor traffic violations
Petty Offence Exceptions
There are instances where petty offences will not render an individual inadmissible to the United States. According to section 212(a)(2)(A)(ii)(II) of the Immigration Nationality Act (INA), even if an individual has committed a crime of moral turpitude, they may still be eligible for entry into US without a Waiver if the crime qualifies as a "petty offence." A CIMT is considered a petty offence if the maximum penalty for committing it is one year or less, and the person was sentenced to no more than six months imprisonment (the exact amount of time they actually ended up spending in jail does not matter) and there is not more than one such crime.
Canadian Pardons or Record Suspensions
While there are many benefits to a Canadian pardon or record suspension, such as sealing the record for Canadian employers, it does not assist in gaining entry to the United States for those who are inadmissible. A US Waiver is still necessary in this case as the United States does not recognized Canadian pardons or record suspensions.
Individuals who have overstayed in the United States, misrepresented themselves to USCBP or USCIS to gain any immigration benefit, falsely claimed citizenship, or worked in the United States without work authorization are required to obtain an I-192 waiver. If they have been removed for any of these reasons they will additionally require an I-212 waiver which is an application to reapply for admission provided they are seeking non-immigrant entry.
There are several communicable diseases that are of a public health significance, and a person who has one of these diseases may not be allowed to enter the United States. The current list of diseases include Gonorrhea, Leprosy, Syphilis, Venereum, Lymphogranuloma, Inguinale, Granuloma, Chancroid, Class A Tuberculosis, as well as select physical disorders, mental disorders, and other communicable diseases as determined by the United States Secretary of Health and Human Services. An individual who refuses the required vaccinations to enter the country may be refused entry as well.
Any person that has any type of security or other related violation will need to have a valid Travel Waiver to enter the United States. This includes people who have been accused of or convicted of being a saboteur, terrorist, or a spy. Persons who are voluntary members of the communist party or any other type of totalitarian party, including Nazis, and any person who would be an endangerment to the U.S. foreign policy will also need special permission to enter the USA (which requires they prove that they are not a threat to the general public of the country). This has also included individuals that have been involved with organized crime, which has included motorcycle clubs in the past.
I-601 Waiver for Green Card Applicants
For individuals who have already applied for immigrant green cards, it is possible to get a permanent I-601 waiver only if a Canadian committed a crime more than 15 years ago that denies them admittance to the United States, a 212h Waiver may allow them legal entry into the country. Section 212(h) of the Immigration and Nationality Act, or INA 212(h)(1)(A) to be specific, provides that on certain grounds such as when the person has been rehabilitated and when admission would not be contrary to the USA's welfare, safety, or security, offences older than 15 years may be waived for those who are already the subject of a green card application.
For those whose criminal convictions took place less than fifteen years ago, or who have immigration violations from any time period, they may apply for an I-601 waiver only if they can prove extreme hardship to a qualifying United States citizen such as a spouse or parent.