It is illegal to attempt to enter the U.S. with a criminal record, unless you have appropriate immigration status or you have a U.S. Entry Waiver.
Haven’t Been Caught Yet?
You may have often passed through the U.S. Immigration and Naturalization Service (INS) after answering a few standard questions about your citizenship and the purpose of your trip. You have been lucky. It is becoming more common for U.S. immigration officers to ask for identification for the purpose of conducting an RCMP computer criminal record search.
Once your record has been discovered, the immigration officer will download your criminal record into the U.S. computer system, and as a result, you will have an INS and an FBI file. Once you are denied access to the U.S., you will be required to apply for a U.S. entry permit called a U.S. Entry Waiver.
Refused Entry: The first time
The first time a person is stopped, they are surprised because they may have crossed numerous times without complication. They were lucky. Once your criminal record is discovered at the U.S. border, the immigration officer will most likely detain you a short time and refuse you entry. It can be humiliating. The immigration officer may inform you that if you ever wish to visit the U.S. again you will need to obtain an entry waiver.
Refused entry: More than once
If you are caught a second time (or more), you will likely be treated much more harshly because you are now knowingly breaking an American law. Under U.S. immigration law, immigration officers are permitted to seize your property.
If you are travelling by bus, the entire bus may be turned away. If you are travelling by airplane, your ticket will be stamped “VOID” and you will not be able to collect cancellation insurance. It is also common for people who are stopped a second or third time to be detained for a few hours and even handcuffed. The experience can be quite devastating.
It is much easier to be caught crossing illegally after you have been stopped the first time. This is because the U.S. now has its own files pertaining to you and your criminal record, which were created the first time you were stopped. Therefore, any search they conduct will reveal this information. If you keep trying to enter the U.S. after having been refused entry, you lessen the chances of being granted an entry waiver which would give you permission to legally enter the U.S. with your criminal record.
Caught While in the U.S.: Being Deported
It is illegal to be in the U.S. with a criminal record, unless you have prior permission from INS, or appropriate immigration status. If you manage to get into the U.S. and you are subsequently caught, you will probably be arrested and deported back to Canada.
Seizure of Your Property
If you are caught trying to enter or being in the U.S. illegally, American immigration officials have the right to confiscate your vehicle and your personal property. You will have great difficulty trying to get them back. In most cases, confiscated vehicles and property are not returned. Proceeds from the sale of confiscated property belongs to the American Government.
Offences Leading to Inadmissibility
Strictly speaking, there are some criminal offences which should not affect your travel to the U.S. because they are not grounds for inadmissibility according to U.S. law. One such offence is driving while impaired, commonly known as drunk driving. The problem, however, is that the U.S. immigration officials at the border turn people away for every kind of criminal record, even in cases where the charges were withdrawn. Essentially, anyone who has a fingerprint number (FPS#) associated with their name and date of birth will likely be turned away.
It is best to seal or destroy your criminal record before attempting to enter the U.S. This way, you will no longer have an FPS# associated with your name, and your record will not appear on any search conducted by INS.
Effect of having a Canadian criminal record sealed or destroyed
If it is not necessary to travel to the U.S. right away, it is best to remove your criminal record first.
If you have been stopped and refused entry, you should apply for a U.S. Entry Waiver. It is looked upon favourably if, in your waiver application, you can show that you have sealed or destroyed your file in Canada. This helps to show that you have not been in trouble for some time and that you are serious about leading a crime free life.
If you have never been stopped at the U.S. border it means that they do not know about your criminal record. After your record is pardoned or destroyed, your FPS# no longer appears on searches that INS conducts at the border. Therefore, they will not have access to your past record.
U.S. Entry Waivers: General
If you must travel to the U.S. before your Canadian criminal record is pardoned or destroyed, you will need to apply for a U.S. Entry Waiver to legally enter. Essentially, you will be admitting and giving details about your criminal record to the U.S. federal government.
You will be required to submit fingerprints for certification by both the RCMP and the FBI. In addition to the basic application, there are many other supporting documents that could be added to your application. Approval of your application is subjective. This means that the better your application package is, the more likely you will be to have your waiver granted. Supporting documents that should be included and which should definitely be omitted is a judgment call based on experience. Pardons Canada can help you determine what is best in your circumstances, taking into account the date of your offence, the nature of your offence, current U.S. sentiment and practices, and your personal situation.
U.S. Entry Waivers: Time Frames
If the application is properly completed and all the relevant supporting documents and reports are included, it takes approximately 5 to 12 months for INS to review your application. Time frames can vary depending on which immigration office you apply to.
Collecting and preparing all of the supporting documents can take anywhere from 3 to 10 months. In total it will take anywhere from 8 to 22 months to obtain your waiver. Therefore, it is best to start the waiver application process well in advance of the date that you wish to enter the U.S.
Visa Waivers for People with Refugee or Residence status in Canada
People who normally require a visa to enter the U.S. do not apply for entry waivers in the same way that Canadian Citizens do. The requirements are fundamentally the same, but the reviewing process is much faster. Pardons Canada can answer your questions and guide you through the process.
Immigrating to the U.S. and Obtaining Work Authorizations
If you are considering immigrating to the U.S., or applying for a work authorization, you will need to undergo a police clearance. If you have a criminal record, it will negatively affect your application, and may result in your application being denied. At a minimum you will be required to do additional paperwork.