Will a DWAI Conviction Bar Entry to Canada?

Recently, the rules surrounding DWIs, DUIs and DWAIs have changed in Canada, ushering in a new era of more aggressive enforcement. One of the most common questions our office receives is if a conviction for a DWAI will bar entry to Canada. The short answer is yes. A DWAI is treated the same way as a DUI at the Canadian border and there is no guarantee of being granted entry into the country.    This fact usually sparks a lot of concern, and also a fair amount of confusion, as a DWAI and a DUI are very different offenses in American criminal law. While it is true that New York criminal law recognizes a significant distinction between DUIs and DWAIs, this is not the case from the Canadian perspective. When an individual attempts to enter Canada, he or she is subject to Canadian law. In order to determine the seriousness of an offense on a criminal record when an individual attempts to enter the country, a Canadian Border Services Agency (CBSA) Officer will equate the offense to its closest Canadian counterpart. Under Canadian law, there is no offense called a DWAI — there is only a DUI. Consequently, a border […]
Continue Reading

IRCC Confirms Rules at the Border Surrounding DUIs

On December 18, 2018, Canada introduced much tougher penalties for individuals with convictions of DWI, DUI or DWAI. The new bill, titled the Impaired Driving Act, has made impaired driving a serious criminal offense in Canada, whereas it was previously only considered a criminal offense. To learn more about this, click here.  However, since the change, there have been rumors of officers treating these charges differently at the border. Now, almost two months after the change to the criminal law regarding DUIs in Canada, IRCC has finally confirmed that officers have been instructed of the following: a) impaired driving offenses (including foreign) committed on or after December 18, 2018 would be considered serious criminality; and b) offenses committed prior to this date would continue to be treated as criminality (providing they were not convicted in Canada and sentenced to more than six months). Please note that as always, if an individual has more than one DUI or DWAI offense, this will be treated as serious criminality.  This is in line with relevant case law in Canada and provides much needed clarity to our clients.  Berardi Immigration Law is now offering DWI and DUI permits into Canada! If you have a DUI or […]
Continue Reading

Government Shutdown’s Continued Impact on Immigration

The government shutdown that began in December 2018 has become the longest U.S. government shutdown in history and is having some major impacts on immigration processing. Customs and Border Protection officers are considered essential staff due to the important role they play in national security at the U.S. border and ports of entry. This ultimately means that processing at ports of entry is occurring as usual. TNs and L-1 visas continue to be processed at ports of entry despite the shutdown, as officers are still adjudicating them. It is important to remember that while CBP officers are still working, they are not being compensated for their work at the present. Fortunately, they will be reimbursed once the shutdown ends, but it is still important to keep in mind when crossing the border and interacting with officers.  Unfortunately, other immigration-related areas are being impacted; specifically, the Admissibility Review Office. The Admissibility Review Office (ARO) is a subset of CBP that processes waiver applications. This office is not considered essential for government shutdown purposes and is not active until a federal budget is passed. This means that, at present, no Applications for Advance Permission to Enter as Nonimmigrant for Canadians at the […]
Continue Reading

Client of the Month: Jason Leithead

Jason Leithead recently worked with Berardi Immigration Law to obtain a waiver to enter the United States. In 1998, Mr. Leithead was deported from the United States and faced a 20-year to lifetime ban from entering the U.S. Upon returning to Canada and working for a logistics company for over 10 years, Mr. Leithead shifted his focus to his employer and providing for his family. Mr. Leithead also became involved in volunteering and giving back to the community. A significant number of Mr. Leithead’s employer’s clients and suppliers are located in the United States. In order to strengthen business relationships, Mr. Leithead hoped to enter the United States to visit with these clients and suppliers. In addition to professional motivations, Mr. Leithead also had personal reasons he wished to enter the United States, including visiting his family’s summer home and vacationing. He decided to reach out to Berardi Immigration Law.  Mr. Leithead was impressed by the team at Berardi, writing, “The best part about working with the team was their professionalism and guidance. Not once did I have any doubts.” Berardi Immigration Law was able to guide Mr. Leithead through the entire waiver process with confidence. He writes, “Berardi Immigration […]
Continue Reading

Legalization of Marijuana in Canada and Possible Repercussions for Cross-border Travel

Earlier this year, Canada passed legislation that would fully legalize the recreational use of marijuana on October 17, 2018. As our previous blog posts have mentioned, while marijuana has already been legalized in some U.S. states, it still remains an illegal substance federally. Consequently, as these state and federal (and now Canadian) laws collide, we anticipate problems for foreign nationals crossing the United States – Canada border.  Despite the fact that marijuana is legal in some states, the border remains federal jurisdiction, patrolled by federally regulated U.S. Customs and Border Protection (CBP) officials. Under current legislation, CBP Officers have discretion to bar entry of a foreign national that admits to acts that violate the law, or if the foreign national is determined by an officer to be a drug abuser or addict. Canadians that admit to using marijuana effectually admit to a federal criminal act, and this can result in a lifelong ban from the United States.  A simple question like “what do you do for a living?” if posed by a CBP officer, could also be problematic for a foreign national that works with or invests in the marijuana industry, even in states where it is legal. Under the […]
Continue Reading

Visa Validity and Waivers

A consular officer may recommend a waiver for most grounds of inadmissibility under INA § 212(a). Some grounds of inadmissibility, however, cannot be waived, including INA §§ 212(a)(3)(A)(i)(I), 212(a)(3)(A)(ii), 212(a)(3)(A)(iii), 212(a)(3)(C), 212(a)(3)(E)(i) and 212(a)(3)(E)(ii). Regardless, waivers are only available to applicants that otherwise qualify for the visa classification being sought, and, even then, there is no guarantee that a waiver will be granted. The issuing process is up to the discretion of the consular officer submitting a waiver recommendation and the CBP Admissibility Review Office (ARO) in reviewing it. In considering whether to recommend a waiver, a consular officer will consider a variety of factors, such as: The recency and seriousness of the activity or condition causing inadmissibility;  The reasons for the proposed travel to the U.S.; The positive or negative effect, if any, of the planned travel on U.S. public interests; Whether the incident in question is isolated or there is a pattern of misconduct; and Evidence of reformation or rehabilitation.  Generally, with the exception of C1 and D visas, a consular officer will recommend a five-year waiver. If granted, that waiver will be valid for multiple entries, but it will only be valid for the validity of the […]
Continue Reading

Waivers Under the Travel Ban

On September 24, 2017, President Trump issued travel ban 3.0, via Presidential Proclamation, which suspends the entry of certain nationals of eight designated countries — Chad, Iran, Libya, Syria, Yemen, North Korea, Venezuela and Somalia. However, these entry restrictions may be waived on a case-by-case basis. To qualify for a waiver, a consular officer or Customs and Border Protection (CBP) official must determine, in their discretion, that the applicant meets each of the following three criteria: (1) denying entry would cause the foreign national undue hardship; (2) entry would not pose a threat to the national security or public safety of the U.S.; and (3) entry would be in the national interest. So, how exactly does this waiver process work?  When adjudicating visa applications of individuals subject to the travel ban, consular officers will first determine whether the applicant is eligible for a visa under the provisions of the Immigration and Nationality Act (INA). If the applicant is determined to be eligible, the officer must then figure out whether that person falls into one of the exceptions to the Proclamation. If no exception applies, the applicant will be automatically considered for a waiver. There is no waiver form that needs […]
Continue Reading