With increased security presence and new regulations being introduced frequently to heighten National Security, gaining access into the US is harder than ever. For those possessing a criminal record it can be very difficult to convince an immigration officer of the reasons why you’d be a good candidate to live in the US temporarily or permanently. Making the likelihood of refusal drastically increased. At Niren & Associates, we handle countless denied entry cases, and we offer potential solutions.
Criminal Inadmissibility and its Effects
Being denied entry into the US for criminal inadmissibility involves “crimes of moral turpitude” (CMT). Crimes of moral turpitude relate to conduct that is inherently base, vile, or depraved, contrary to social standards of morality and done with a reckless, malicious, or evil intent.
- This generally relates to the following crimes:
- Controlled Substance Traffickers – Includes “assister, abettor, conspirator, or colluder”
- Conviction of 2 or more offenses with a combined sentence of 5 or more years
- Prostitution and Commercialized
- Certain aliens involved in serious criminal activity who have asserted immunity from prosecution INA
Crimes of moral turpitude cover a large spectrum of offences from common assault to drug offences. However there are certain important exemptions found under INA:
1. The ground does not apply where the alien has committed only one crime of moral turpitude, the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien was released from confinement to prison or a correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.
2. The ground does not apply where the alien has committed only one crime of moral turpitude, the maximum penalty possible for the crime for which the alien was convicted or to which the alien admits having committed or of which acts the alien admits having committed which constitute the essential elements of the crime did not exceed one year of imprisonment and, if the alien was convicted of the crime, the alien was not sentenced to imprisonment for a term greater than six months, regardless of the extent to which the sentence was ultimately satisfied.
The previously mentioned exemptions are collectively known as the “petty offence exception”. In practice, you will encounter many clients wrongfully denied entry to the US due to criminality who fall under the petty offence exception. It is therefore important to carefully investigate your clients’ background to determine if are admissible to the US.
How Waivers Can Allow The Criminally Inadmissible to Enter
Under INA, an alien who is excludable other than for security and related grounds (with the exception of export violations), foreign policy grounds or participation in Nazi persecution or genocide is eligible for admission as a non immigrant on a temporary basis despite his or her inadmissibility.
The Board of Immigration Appeals outlined the criteria for an application for a waiver of inadmissibility under INA. The three criteria considered are:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s prior violation(s) of immigration or criminal law, if any; and
- The nature of the applicant’s reasons for seeking entry.
- Waivers of Inadmissibility
Waivers of inadmissibility are currently valid for a period of 5 years but could be issued for a lesser period at the discretion of the immigration officer. If the waiver is granted, the applicant can enter the US despite his or her criminality and is required to display the waiver for each and every entry during the currency of the waiver.
If you feel that you may meet the criteria set above and a prepared to go though the lengthy process of the waiver. It may be a good idea to contact a skilled immigration attorney for counseling.
Waivers for Canadians
For Canadians, the procedure for applying for a non-immigrant waiver involves first obtaining an RCMP certificate as well as local court records of the offence in question. Further, a personal statement from the applicant concerning the circumstances surrounding the offence has to be prepared. Two application forms, an I-192, Application for Advance Permission to Enter as a Nonimmigrant and a G-325A Biographic Information must also be completed. Supporting documentation includes information relating to ties to Canada such as the applicant’s family in Canada, employment, and assets. It is also recommended that 3 character references be included. If your client has been convicted of a narcotics offence, then he or she should undergo a drug test and provide a letter of clean record from a physician.
The Application Package Procedure
Once the application package is ready for submission, your client must attend at a designated port of entry to make application in person and pay the application fee. Fingerprints will be taken during this process. Processing time for waivers ranges from 6 to 9 months and the results are mailed to the applicant. If the application is denied, the applicant has 30 calendar days to file an appeal to the Board of Immigration Appeals or the Administrative Appeals Unit. The current processing fee is $110.00USD for such appeals.
Given the wide range of offences caught by the criminal inadmissibility provisions, it is essential that you investigate the potential criminal history of all your non-immigrant clients entering the US for business or pleasure before sending them to the US.
Helping to Overcome Your Obstacles with Aid of an Attorney
Criminal history, however severe, tend to shed a negative light on an individual when attempting to enter the United States. Fortunately, in certain circumstances, You have a chance at criminal inadmissibility if the US immigration offers that opportunity .
If this applies to you and you are looking to increase your chances for potential for eligibility, it would be advised to enlist the help of a professional immigration lawyer. They can best determine what measures to take as well as the best means to present your appeal.
I just got my TN visa thanks to all of the support and preparation provided by your team. I had been earlier refused entry inside the States and was at a really tight spot. However, your team did a fantastic job of quickly putting together my documents, and getting me completely prepared for an interview. – Anonymous