overcoming criminal inadmissibility
Applying for a US Waiver
If you are inadmissible to the United States because of a criminal history, the only way a resident of Canada can legally cross the border is with a US Entry Waiver! There are a variety of reasons why an individual could be considered criminally inadmissible to the USA, but the main reason is that they have been arrested or convicted of a crime involving moral turpitude. It does not matter how long ago the offense occurred, Canadians have recently even been denied entry to the US because of crimes that took place in 1960s and 1970s. The United States government also does not officially recognize Canadian pardons or record suspensions, which means even if your record has been sealed the US border will still be aware of your criminal past.
Drug Use and Arrests
If you are at the port of entry in the United States and you admit to drug use, the admissibility rules will apply to any convictions discharges, as well as other committed offenses. If you have committed an offense, but were not convicted, you may still be denied entry and may need a United States waiver. Some common examples of how this may occur include when the port officer asks if you have ever smoked pot, or if they ask if you have ever been charged, arrested, or fingerprinted. If you answer yes to one or both of the questions, even if you were not convicted or discharged or if the charges were dropped, and you describe something that may suggest you might have committed any type of excludable offense, you may be deemed inadmissible.
Typically, these offenses will not be accessible by the U.S. after the charges have been withdrawn, dismissed, or dropped. However, the United States may be able to obtain this information if the charges are pending or if the discharge has not been removed from your record after the waiting period. If you have any criminal history involving drugs or other controlled substances you can pretty much guarantee that you will be denied entry to the USA without a US Entry Waiver.
Common Misconceptions about Travelling to the USA with a Criminal Record
There are many misconceptions about travelling to the United States with a criminal record. Here are some common things that many Canadians may have heard about travelling with their criminal record.
One of the most common mistakes people make when dealing with USA border officers is thinking they can outsmart them by lying. If you are not eligible to enter the USA because of a criminal record, American border agents will be well aware of this fact as soon as they scan your passport. Pretending like you don't have a criminal history by not disclosing it when asked will only get you into further trouble, such as an outright ban from the country. The only way you can legally visit the United States once you are criminally inadmissible is with a US Entry Waiver!
Many Canadians often make false assumptions about their ability to go into the United States. It is important to remember that your ability to travel into the U.S. is a privilege and not an automatic right. Your admissibility is not discretionary. You will either have a record that allows you to enter the United States or your record will make you inadmissible into the country. The only discretionary thing about crossing the border is whether or not the border patrol guard will run your name to see if you have a criminal record.
The laws are quite complex and there are cases where a border guard may choose to ignore a person’s record that makes them inadmissible. However, this does not happen very often. There is also a chance that a guard may allow you into the United States, even if you are not. You may also be refused entry in error because you are not carrying the right documentation with you that proves you are admissible.
“I have been admitted before, so I should be okay.”
Airport security only randomly screens people, and the United States border patrol does not check every single person that comes across the border to see if they have a criminal record. Just because you make it in one time does not mean that you will again. In addition, if you knowingly cross the border with a criminal record that makes you inadmissible, there are many consequences including arrest. In this case, it is really not worth taking the risk of being allowed to cross the border. It only takes one time to get caught and the consequences can be dire.
“I Have a Canadian Passport, so it must be okay.”
Canadian passports are simply a form of identification. The passport does not link to your criminal record and is not evidence to support that you do not have a criminal record any longer. In addition, a passport from Canada does not help with inadmissibility. If you have a record that states that you are inadmissible, you have to apply for a US waiver. When a passport is run by the border patrol it is simply to make sure that it is not stolen and that it is valid. A separate database has to be checked to see if a person has a criminal record. A passport can be used for identification on many of the waiver applications that may be necessary to gain entry into the United States should you be deemed inadmissible.
“My conviction was more than 7 years ago, my record is clear.”
A conviction on your record does not simply go away. In order to have your criminal record sealed you have to apply for a pardon. The pardon will not erase the conviction and can be revoked if you commit another crime. Pardons are not recognized by the United States and therefore cannot help you overcome inadmissibility. This means that no matter how long ago that you committed a crime; you will need to apply for a waiver in most cases. The US Department of Homeland Security, or more specifically US Customs and Border Protection has access to the RCMP criminal database, and since they don't recognize Canada pardons they don't seal their record when Canadian authorities do (meaning they can still see the conviction when you attempt to cross the border).