About US Waiver Applications
If you have a criminal record and would like to enter the United States, you may need a waiver of inadmissibility in certain circumstances. Some people enter the US without issues, but are then denied entry on other occasions.
If you attempt to cross the border knowing you are inadmissible, you may get into serious trouble, and if you are travelling with others, they may also be deemed inadmissible to the US. If you intend to traverse the border knowing you have a criminal record or violations of immigration laws, you may require a waiver.
US Waiver FAQ
What is a US Visa Waiver?
A US entry waiver is the name commonly used for two kinds of applications needed to gain entry to the United States:
- Most non-immigrants traveling to the United States need to apply for advance permission to enter as a non-immigrant.
- Immigrants and some specific types of non-immigrants may need to apply for a waiver on the grounds of inadmissibility.
These two types of waiver applications concern inadmissibility to the US, but are referring to different classifications of immigrant and non-immigrant.
US travelers who are declared inadmissible will have to file an application for advance permission to enter as a non-immigrant, known as a US entry waiver.
When is a Waiver Necessary?
The US Customs and Border Protection (CBP) on several grounds may deny your entry to to the United States, for which you may need a US waiver.
Some reasons that you may be denied entry to the US are:
- if you have criminal records for “crimes of moral turpitude”
- if you have been convicted twice or more of a crime with sentences amounting to 5 or more years in total
- if you have a communicable disease
- for drug possession and drug trafficking
- for money laundering
- for security violations
- for any type of international trafficking of minors
- immigration violations such as overstaying
Moreover, if you were convicted for an offense based solely on political grounds, or were convicted when you were under 18 years of age, you do not need to obtain a waiver because you are not held inadmissible by law.
Who is Qualified for a Waiver?
- As long as they satisfy a set of rules, some types of non-immigrants who go to the US for a business purpose or pleasure are qualified to apply for a waiver.
- Non-immigrants who are generally visa-exempt such as non-immigrant citizens from countries that are on Visa Waiver Program, and Canadians who are not usually required to apply for a visa.
- Non-immigrants who had obtained an entry visa in the past but had since been considered inadmissible may apply for a waiver.
In all circumstances, your eligibility will depend on the grounds of your inadmissibility. You must be able to convince the Customs and Border Protection (CBP) and the US Citizenship and Immigration Services that you are not anymore a threat or risk to the security of the US.
Anybody, who makes a false representation of his or her citizenship status by claiming that he or she is a an American citizen in order to acquire the benefits of being a US citizen, is not eligible for a US waiver.
Do I need a waiver if the charge against me was withdrawn or is pending?
Not necessarily, but in order to support your claim you need to produce the court documents evidencing that such is the case. You may request these documents from that court that tried your case.
Does a waiver have limitations?
Yes. With a waiver, you can only visit the United States for a definite length of time. Although you can enter into the United States several times using the waiver until it expires, you may need to accomplish additional requirements if you are going to stay in the US for over 3 months. You will have to fill out forms, which must be notarized, and attach them to your application.
When can I apply for a US waiver?
You can file an application for a waiver of inadmissibility any time but it is best to wait some period after your conviction. The waiting period to get a waiver is usually is 6 months to one year.
Will a Canada Pardon exempt me from the waiver requirement?
No. You may still need to apply for a waiver because the United States Customs does not recognize a Canada Pardon.
What must I do to obtain a waiver?
- Fill out form-I-192 and support your citizenship status with evidence. For biographical information, you will need to complete form G-325. Note that if a lawyer or a firm is assisting you in applying for a waiver, you must also fill out completely form G-28 or G-28i.
- When you submit your application, a CBP officer will take your finger prints on card FD-258 then submit your finger prints to RCMP on form C216C. Finger printing is not required if you are a Canadian citizen or a permanent resident.
- If you have a criminal record, you must submit a copy of your criminal record and provide a copy of the official record from the court that convicted you for every criminal offense for which you were convicted. You must write your own statement explaining each conviction and sentence and provide facts or information on your character reformation and rehabilitation.
- If your were held inadmissible for violating immigration rules, you have to produce evidence of:
- past US employment
- current employment in the country of residence
- immediate family residing in the US
- past or present business investments in the US
- all ties to your country of residence
You are going to personally submit these at the US port of entry. If you are a Canadian citizen, you can submit your application in person at the “preclearance” centers in Canada.
What is the processing period for a US Waiver application?
It takes usually 6 to 8 months for waiver applications due to delays in collecting RCMP-certified records from Ottawa. The processing time will radically cut down to 3 to 4 months if fingerprinting is done in one of our offices where biometric scanning is being done.
You should expect an additional 6 to 12 months of processing time for the US Customs Border Protection to render a decision.
Can I be denied of a waiver?
Yes you can. If it appears that you are of high risk of re-offending, your application will be denied. But you can usually appeal it within 30 days of the refusal.
What is a crime of moral turpitude?
It is a part of certain criminal offenses in the US law and is inherent in the nature of some specific crimes committed. Moral turpitude is present in certain types of crimes provided that there is a final conviction.
What types of crimes are considered crimes of moral turpitude in the US?
Generally, there are three kinds of criminal offenses involving moral turpitude under the law for immigration purposes. They include:
1. Crimes against property
- all forms of fraud and intent to defraud
- malicious destruction of property and arson
- embezzlement, blackmailing, extortion, and forgery
- robbery, theft, burglary, larceny, transporting or receiving stolen goods with foreknowledge
2. Crimes against government authority
- perjury, bribery, and harboring a fugitive with knowledge
- tax evasion and fraud committed against the government
3. Crimes against persons
- adultery, bigamy, lewdness, and gross indecency
- kidnapping, willful abandonment of a minor or contributing to the delinquency of a minor
- some types of assault with intent to kill, with intent to rape, with intent to rob, with intent to commit serious bodily harm, with deadly or dangerous weapon, mayhem as permanently disabling someone
- incest involving rape and statutory rape
- pandering or procuring and prostitution
Not every offense mentioned above is a criminal offense under the US penal law, however the US immigration has the right to deny entry of anybody convicted of any of the above mentioned crimes and other offenses.
Only convictions made to persons who are 18 years old or over will be treated as a basis for inadmissibility.
Crimes involving political offenses are not grounds for holding a political offender inadmissible.
I am inadmissible on criminal grounds. Will I be eligible for a waiver?
Depending on the grounds for your inadmissibility, your can be issued a waiver on the following circumstances:
- if your sentences on two or more convictions amounted to 5 or more years in total, and if you were convicted of a crime of moral turpitude
- a conviction for drug possession of 30 grams or less of marijuana
- if you acquired immunity from suit and prosecution for collaborating with authorities
You must also show that:
- at least 15 years had already passed since the incident happened, and that you have a proof showing your reformation and rehabilitation
- you were held inadmissible only because of your participation in prostitution, but you have an evidence to prove your rehabilitation
- or your presence is highly needed by your immediate family who is a US citizen or permanent resident and that the latter will suffer extreme difficulties if you were denied entry
- or you are applying by virtue of Violence Against Women Act (VAWA)
Even if you meet the requirements and conditions just mentioned, it does not make you automatically entitled to a waiver. Each case is determined independently and individually on its own. There are violent or dangerous crimes that may still be regarded as grounds for inadmissibility unless some “extraordinary circumstances” will prove otherwise.
What do you mean by extreme hardship?
It is a type of suffering that a US citizen or permanent resident could experience if his or her immediate family will be denied entry to the United States on account of inadmissibility. The extreme hardship doctrine helps the Customs and Border Protection officials to determine and decide a case of one’s inadmissibility. The applicant must therefore provide evidence including but not limited to:
- proof of family relation such as birth certificates and marriage certificates
- family ties outside the US of the US citizen or permanent resident
- financial effect on the US citizen or permanent resident if the application is denied
- critical health conditions and the kind of treatment expected in the country of relocation
- the effects that separation causes the family
- conditions in the country of relocation if an application is denied, and the ties of the US citizen or permanent resident to that country
- other conditions affecting the quality of life of the US citizen or permanent resident
Once this evidence is produced, the applicant has a very good chance of getting an approval.
What are the types of diseases that will amount to inadmissibility?
- infectious tuberculosis
- infectious leprosy
- certain STDs such as chancroid, gonorrrhea, donovanosis, Durand-Nicolas-Favre disease and syphilis
- other communicable diseases as the US Department of Health may determine
Although physical or mental disorders are not communicable disease, you may still be denied entry if the disorders have developed to a harmful behavior. For refusing vaccinations, your application can also be disapproved.
If I was inadmissible for health reasons, how can I get a waiver?
Being an immediate family member of a US citizen, a permanent resident, or the fiancee or child of the fiancee of such, you may be approved for a waiver of inadmissibility. An applicant with physical or mental disorders, which in some ways could be harmful to US citizens, must provide a complete medical history. You must also convince CBP and USCIS that your refusal to vaccinations was due to profound religious faith or moral convictions.
If you are applying for a waiver under Violence Against Women Act (VAWA), you have a very good chance of being granted a waiver.
How do you define a security violation?
In view of inadmissibility, a security violation presupposes that a person’s behavior or involvement and membership in an organization could pose a threat to the United States. The acts of security violations include:
- jeopardizing US foreign policy
- committing or intending to commit sabotage, espionage, or terrorism
- becoming a voluntary member of a terrorist organization or a totalitarian political group
How is immigration violation committed?
Some types of immigration violation are as follows:
- overstaying a visa
- an attempt to re-enter after having been expedited or deported
- Entry Without Inspection (EWI) – anyone who entered the US without proper admission at the port of entry regardless of whether the person had already been to the United States.
An unlawful stay of more than 180 days but less than a year of a person in the United States shall render him or her inadmissible for 3 years. If the persons after unlawfully overstaying in the US for more than a year voluntarily left, they shall be barred from entering the US for 10 years. In both situations, they can be eligible for a waiver for as long as they have not perpetrated other immigration violations.
The following immigration violations however may negate your chances of acquiring a waiver:
- if after leaving voluntarily, you return to the US through EWI
- any attempt to re-enter after deportation
- anybody who falsely claims to be a US citizen in order to benefit from being a citizen of the United States
Can I apply for a waiver even though I was held inadmissible for immigration fraud and violation?
Applying the doctrine of extreme hardship, you sill have a chance of being approved if you can show that your entry denial will cause your immediate family, who is a US citizen or permanent resident, to suffer extreme hardship.
You can also invoke eligibility under Violence Against Women Act (WAWA).
I was involved in human trafficking. Can I apply for a waiver?
You can still qualify for a waiver if you can comply with the following:
- if you meet the basis for humanitarian reasons provided that you have only been involved in the human trafficking of your immediate family member
- if you are seeking admittance or adjustment of status acquired through an immediate family who is a US citizen
- if you have already resided as a lawful permanent resident in the United States and have left voluntarily
- if you are facing a final court order, with no civil financial penalty, because of a document fraud you committed to help an immediate family member ONLY, you may be eligible for a waiver on the condition that you are seeking admittance or adjustment of a status acquired through an immediate family who is a US citizen or if you have already resided as a lawful permanent resident in the United States and have left voluntarily before the “final order” was used against you for your deportation.
Do I have to file separate applications for individual grounds of inadmissibility?
You do not need to file a separate application for each reason for your inadmissibility, but you must state in your application all the grounds on which you were held inadmissible. If you failed to include in your application one or more grounds for which you were considered inadmissible, you may still be denied entry on account of those grounds you missed to declare because the waiver, if granted, covers only the grounds that you described in your application.
What is the 3-year and 10-year bar?
The 3-year bar makes you inadmissible for 3 years if you unlawfully stayed in the United States for over 180 days but less than a year. If you unlawfully stayed in America for over a year, you may be barred from entering the US for 10 years.
Can a 3-year or 10-year bar be waived?
If you can show that your immediate family member who is a US citizen or a permanent resident will experience extreme hardship if you are not allowed to enter the US, you may be granted a waiver.
You may also be eligible if you are applying for a US visa as a victim of human trafficking.
How do I apply for a waiver under Violence Against Women Act?
While being considered inadmissible, you must establish the connection of battery or extreme cruelty to the grounds of your inadmissibility. For instance, you must be able to demonstrate a connection between extreme cruelty and your unlawful stay in the US.
Can you explain what a Temporary Protected Status is?
Under Temporary Protected Status
(TPS), the United States allows a temporary designation for citizens of another country experiencing a national emergency such as civil war and natural disasters. With travel authorization, these nationals can work and travel to and from the US while they cannot be assured of safety back in their home country. TPS does not confer them any kind of immigration status and cannot be invoked in applying for a US permanent residence, although these nationals are not prevented from seeking one.
I have been considered inadmissible but my country has been given TPS. Can I apply for a waiver?
Anybody held inadmissible with the exception of those from a TPS country, can file an application for a US waiver based on humanitarian, family unity or public interest grounds.
Why You Should Seek Help from An Immigration Lawyer for Your US Visa Waiver
How do you most want to resolve your entry denial to the United States on the grounds of inadmissibility? If you were denied entry, barred from entering the United States, had a criminal record in Canada and the U.S., or had an incident of crossing the border, We can carefully handle your case and help you process all the necessary requirements and documents to gain entry to the United States. If you are anxious about whether you need to apply for a waiver or not, give us a call.
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