Denied Entry into the USA

USA Waivers

Canadians and Americans have always enjoyed relatively easy access across our shared borders. Business travelers and pleasure seekers alike have merely had to display their proof of citizenship to customs officials at a port of entry in order to be admitted across the border.

However, under increased border security and scrutiny, the days of easy access are numbered. The problem is compounded if your client is subject to one of the many grounds of inadmissibly listed under Immigration and Nationality Act (INA) S. 212 [8 U.S.C. 1182] such as criminality or health related grounds.

This article will focus on the criminal grounds of criminal inadmissibility for non immigrants to the US and the remedies available for your clients. Non immigrants are persons entering the US on a temporary basis for work, business or pleasure.

Basically, criminal inadmissibility involves “crimes of moral turpitude” (CMT). CMT is a legal term of art and is dealt with under INA §212(a)(2)(A)(i)(I).

Crimes of moral turpitude relate to conduct that is inherently base, vile, or depraved, contrary to social standards of morality and done with a reckless, malicious, or evil intent. This somewhat archaic definition generally relates to the following crimes:

  • Controlled Substance Traffickers – Includes “assister, abettor, conspirator, or colluder” INA §212(a)(2)(A)(i)(II),
  • Conviction of 2 or more offenses with a combined sentence of 5 or more years INA §212(a)(2)(B
  • Prostitution and Commercialized vice §212(a)(2)(D
  • Certain aliens involved in serious criminal activity who have asserted immunity from prosecution INA §212(a)(2)(E),

Crimes of moral turpitude cover a large spectrum of offences from common assault to drug offences. However there are certain important exemptions found under INA 212(a)(2)(A)(ii):

1. The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.

2. The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.

The aforementioned exemptions are collectively known as the “petty offence exception”. In practice, you will encounter many clients wrongfully denied entry to the US due to criminality who fall under the petty offence exception. It is therefore important to carefully investigate your clients’ background to determine if, despite they may have committed a CMT, they nevertheless are admissible to the US.

What if your client has been convicted of a CMT and does not qualify for one of the exemptions? What is the remedy?

Under INA §212(d)(3), an alien who is excludable other than for security and related grounds (with the exception of export violations), foreign policy grounds or participation in Nazi persecution or genocide is eligible for admission as a nonimmigrant on a temporary basis despite his or her inadmissibility.

The leading case in this area is the The Matter of Hranka, 16 I&N Dec. 491 (BIA 1978). The Board of Immigration Appeals outlined the criteria for an application for a waiver of inadmissibility under INA §212(d)(3). The three criteria considered are:

  • The risk of harm to society if the applicant is admitted;
  • The seriousness of the applicant’s prior violation(s) of immigration or criminal law, if any; and
  • The nature of the applicant’s reasons for seeking entry.

Waivers of inadmissibility are currently valid for a period of 5 years but could be issued for a lesser period at the discretion of the immigration officer. If the waiver is granted, the applicant can enter the US despite his or her criminality and is required to display the waiver for each and every entry during the currency of the waiver.

For Canadians, the procedure for applying for a non immigrant waiver involves first obtaining an RCMP certificate as well as local court records of the offence in question. Further, a personal statement from the applicant concerning the circumstances surrounding the offence has to be prepared. Two application forms, an I-192, Application for Advance Permission to Enter as a Nonimmigrant and a G-325A Biographic Information must also be completed. Supporting documentation includes information relating to ties to Canada such as the applicant’s family in Canada, employment, and assets. It is also recommended that 3 character references be included. If your client has been convicted of a narcotics offence, then he or she should undergo a drug test and provide a letter of clean record from a physician.

Once the application package is ready for submission, your client must attend at a designated port of entry to make application in person and pay the application fee. Fingerprints will be taken during this process. Processing time for waivers ranges from 6 to 9 months and the results are mailed to the applicant. If the application is denied, the applicant has 30 calendar days to file an appeal to the Board of Immigration Appeals or the Administrative Appeals Unit. The current processing fee is $110.00USD for such appeals.

Given the wide range of offences caught by the criminal inadmissibility provisions, it is essential that you investigate the potential criminal history of all your non-immigrant clients entering the US for business or pleasure before sending them to the US.

Are you a Canadian wishing to work in the United States? We can help. Call us for a consultation or use our contact form on this page.