U.S. Immigration Waivers for Canadians

Article written by John C. Newman, Esq.
Posted on Mar 28, 2013

In our immigration practice, we receive the occasional call from a Canadian who wishes to enter the United States but cannot due to a criminal conviction. For example, we recently advised on the case of an individual who had been barred from entering the United States because of a conviction for the possession of one marijuana cigarette in the United States 10 or 20 years ago (at a time when President Clinton was admitting that he had smoked marijuana, but “did not inhale”). The Canadian citizen asked us whether, if he could expunge his marijuana conviction, he would then qualify to enter the United States. This question is asked frequently enough that we wanted to post an answer on our web site.

The short answer is that expunging a criminal record (even if successful, which is doubtful) will not suffice to allow the Canadian citizen to be admitted to the United States. The basis for inadmissibility would be the admission of facts showing possession of the controlled substance (marijuana) regardless of an expunged conviction. Nevertheless, a waiver of inadmissibility is available under the Immigration and Nationality Act §212(b)(3)(B) under certain circumstances.

This waiver request is filed by the applicant at his or her intended port of entry (normally for our clients Highgate Springs, Vermont). The application is made on U.S. Customs and Immigration Service (USCIS) Form I-192 “Application for Advance Permission to Enter as a Nonimmigrant”. The current filing fee for the application is $545, which may be increased on November 11, 2010 as a result of a series of immigration fee increases. At the time that the application is filed at the port of entry on the U.S./Canadian border, the applicant will be fingerprinted. The fingerprint card accompanies the application. Along with the form and filing fee, the applicant must submit a written statement, signed under penalty of perjury, explaining in detail why the applicant is inadmissible and why the applicant believes that he should be admitted to the United States. Because the inadmissibility is based on a criminal conviction, the applicant must submit with the application the official record of each conviction and all court dispositions for each conviction.

Along with this statement, the applicant must provide proof of citizenship (such as a certified copy of his or her passport), a completed USCIS Form G-325A “Biographic Information”, and an official police record from the home country or evidence that no record exists. For a Canadian, this information is obtained from the Royal Canadian Mounted Police (RCMP) by submitting the applicant’s fingerprints on Form C-216C to the local RCMP office. In addition to these documents, the applicant should supply a written account demonstrating rehabilitation and character reformation to support being admissible to the US without risk. This lack of risk might be demonstrated through achievements in community service, or other types of information.

The Form I-192 and supporting documentation will be forwarded to the Admissions Review Office (“ARO”) in northern Virginia. An answer can be expected within approximately 90 days.

Our Firm is available to represent Canadians wishing to pursue such waivers. An author on this topic (Mary E. Cramer, Immigration Consequences of Criminal Activity, an AILA publication) suggests that representation by an attorney is important in such matters to increase the likelihood of a favorable ruling because such a waiver is totally discretionary. The written application also should be well prepared, because it will be based on this written application that a possible denial can be appealed to the Board of Immigration Appeals.

Back to Articles listings page