I’m a Canadian Citizen with a Criminal Conviction. How Can I Apply for a Waiver to Get Into the U.S.?

I’m a Canadian Citizen and have a prior criminal conviction.  How can I obtain a waiver to get into the United States?

Canadian and the United States citizens enjoy relaxed immigration policies when traveling between the two countries.  But those relaxed policies can sometimes cause people to falsely believe that they are not going to be denied admission into the country.  One area where this often happens is when a person has a prior criminal conviction and then tries to enter the United States.  Customs and Border Protection (CBP) may deny admission and tell you that you must apply for a waiver.  So, let’s discuss that process.

What is a 212(d)(3) waiver?

If you are seeking to come into the United States for a temporary time and you are “inadmissible” because you have a prior criminal conviction that makes you inadmissible, you can apply for a 212(d)(3) waiver.  If you are granted the waiver, you will not be denied admission based on that criminal conviction.

How do I get a waiver?

The process is a little different depending on whether you are inside or outside the United States and whether you are applying for a T or U visa, but we’ll keep the discussion here limited to people who are in Canada and seeking to come in to visit for business or pleasure.

You apply for a 212(d)(3) waiver by filling out and filing Form I-192, along with the filing fee and corroborating evidence.  The form and instructions can be found on USCIS.gov.  We draft a comprehensive legal memorandum and accumulate as much evidence as possible to submit with the packet.

Once the packet is complete, you would go to a CBP port of entry (P.O.E.) or pre-clearance office and submit the application to CBP.  They tender the application to the Admissibility Review Office (ARO) who adjudicates the application.

The ARO will either send you an approval or denial.  If your waiver is approved, it will be valid for 5 years.  If the waiver is denied, you can appeal to the Board of Immigration Appeals (BIA).

What will the ARO look at in deciding whether to approve or deny my waiver request?

The ARO will look at the three factors set out in the landmark BIA decision of Matter of Hranka.

  1. The 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; and 
  3. the nature of the applicant’s reasons for wishing to enter the U.S. 

The idea is to submit as much evidence as possible relating to the criminal offense, rehabilitation, employment, contributions to the community, reasons for going to the U.S., and more.

How do I know if my criminal conviction makes me inadmissible?

Not all criminal convictions will make a person inadmissible.  If you haven’t been told by CBP that you need to seek a waiver, you should consult with an immigration lawyer that practices immigration to the United States.  Most people find out that they need a waiver when they are turned away at the border and told by CBP that they are inadmissible and need the waiver. However, the CBP agent could be wrong and you may be able to get them to reconsider.  Either way, you should meet with an immigration attorney experienced in both criminal and immigration law to look over your record of conviction to determine whether you need the waiver and what evidence would increase the probability of success.

Jeremy12-15-17-224x300Jeremy Lasnetski is a partner at the Law Offices of Lasnetski Gihon Law. The firm focuses on immigration, criminal defense and personal injury. Mr. Lasnetski focuses his practice on immigration and criminal defense and is the former Jacksonville Regional Vice Chair of the American Immigration Lawyer’s Association, Central Florida Chapter.  He has represented clients in deportation proceedings, USCIS benefit cases, consular processing cases, and more.  He routinely gives presentations on immigration law issues to both criminal and immigration lawyers at conferences and seminars throughout the State of Florida.


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