CRIMINAL WAIVERS OF INADMISSIBILITY

Have you committed an offense and now you wish to travel to the US?

The most common grounds for inadmissibility are:

  • prior history of criminal activity;
  • prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US.

CRIMINAL ACTIVITY

There are six basic criminal grounds for inadmissibility:

1) Crimes involving moral turpitude
2) Violations of controlled substance laws
3) Conviction of more than one offense
4) Drug trafficking
5) Prostitution and commercialized vice, and
6) Commission of a serious crime in the US for which the immigrant asserted immunity from prosecution.

Crimes involving moral turpitude has no statutory definition but typically involve elements of fraud, larceny, or attempt to harm persons or things. These crimes can be classified into three general categories:

1) Crimes committed against property (for example, arson, blackmail, burglary, larceny, robbery, fraud, false pretences, theft, receiving stolen property); 
2) Crimes committed against governmental authority (for example, bribery, tax evasion, perjury, fraud against government functions); and 
3) Crimes committed against persons, family relationships, and sexual morality (for example, serious assaults, gross indecency, lewdness, kidnapping, contributing to the delinquency of a minor, murder, voluntary manslaughter, rape).

Except for individuals with inadmissibility findings related to security and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility at a US Embassy. An applicant for any type of nonimmigrant visa, such as B-2, F-1, H-1B, J-1, or L-1 who has been found inadmissible, can submit a waiver of inadmissibility together with their nonimmigrant visa application.

Each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, the availability of a waiver, and the likelihood of a successful waiver application.

The following factors are considered in granting a nonimmigrant waiver:

1) Risk of harm to society if the applicant is admitted.
2) The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
3) The nature of the applicant’s reasons for wishing to enter the United States.

It is important to note that even if a waiver is recommended and a visa is ultimately granted, some travellers still face intense scrutiny and at times harsh treatment by Customs and Border Protection when entering the United States. This type of behaviour cannot be predicted and is entirely discretionary. If unnecessary delays when entering the United States continue to occur even after a visa has been approved by the State Department then you will want to consider whether to file a complaint through the DHS Traveller Redress Inquiry Program (TRIP). A DHS TRIP submission can be made if you are facing the following issues:

• You are always subjected to additional screening when going through an airport security checkpoint.
• You were denied boarding.
• You are directed to a ticket counter every time you fly.
• The airline ticket agent stated that you are on a Federal Government Watch List.
• You are detained during your travel experience.
• A ticket agent took your identification and called someone before handing you a boarding pass.
• You missed your flight while attempting to obtain a boarding pass.
• You are repeatedly referred for secondary screening when clearing U.S. Customs and Border Protection.
• You were denied entry into the United States.

For more information see https://trip.dhs.gov/

If you have questions regarding the need for a waiver of inadmissibility or a DHS TRIP submission please contact us for a comprehensive review of your circumstances and a detailed discussion about strategy, procedures, timing, and costs.