Criminal Waivers

The U.S. Department of Homeland Security (DHS) has access to certain foreign criminal record databases, therefore any individual with a criminal record runs the risk of being denied entry to the U.S., even if it is only for a brief visit.  As technology advances and access to criminal record databases increase, it is not uncommon for an individual to learn they are inadmissible decades after a triggering incident and prior entries to the U.S. without issue. 

Please note that Canadian pardons are NOT recognized by the United States and a U.S. nonimmigrant waiver is still required for entry.  Do not waste your money on a Canadian pardon; it will not help your border-crossing problems. The U.S. government does NOT recognize foreign pardons.

Applying for a Nonimmigrant Waiver via CBP’s Electronic Secured Adjudication Forms Environment (e-SAFE)

What is e-SAFE?

e-SAFE is the U.S. Customs and Border Protection’s (CBP) new online system that allows eligible nonimmigrants who do not require a visa to enter the United States, such as citizens of Canada, to apply for a waiver of inadmissibility via Form I-192.

Beginning mid-year 2019, eligible citizens of visa exempt countries can apply online using Form I-192 through e-SAFE.  Applicants who complete electronic filing via e-SAFE will need to go to an e-SAFE designated port of entry within 45-days to complete the biometrics portion (fingerprints and photograph) of the waiver process. 

Applicants who submit their applications online will be able to check the status and progression of their application, receive electronic communications, and receive electronic notification of a decision in near real time. The processing time for waiver applications submitted online via e-SAFE are significantly less than the traditional paper form applications manually submitted at the port of entry.

Required Documentation

The following documents must be submitted to CBP via the e-SAFE portal: 

• Statement of Remorse;
• Proof of Citizenship (i.e., copy of your passport biographic page); 
• Official Court Records (indicating plea indictment, conviction and disposition for each crime committed anywhere in the world);
• RCMP Report (must be endorsed within 15 months of the date of submission with your electronic application on e-SAFE); 
• Pardoned Records (if applicable); 
• Character Reference Letters; 
• Prior Nonimmigrant Waiver Approval Notices (if applicable); and 
• Form G-28 (only required if the applicant is represented by an attorney or accredited representative).

Additional Optional Documentation

The following documents are recommended optional documents that can be submitted including: 

• Evidence of Rehabilitation/Reformation of Character;
• Evidence of Current Foreign Employment;
• Previous U.S. Employment;
• Evidence of Ties to Your Present Foreign Country/Residence; and 
• Any additional evidence which may support your application.

The Berardi Immigration Law Process

Our goal at Berardi Immigration Law is to make this process as seamless as possible. We will create your account in the e-SAFE portal, input the necessary information, upload the required documents, and submit the application. Once submitted, we will send a physical copy of the waiver application to take with you to the designated port of entry to complete the biometrics portion of the waiver process. After your biometrics are taken, your application will be adjudicated by the Admissibility Review Office (ARO) and a decision will be made.  As mentioned above, we will receive an email notification once the decision has been made and notify you immediately. 

Petty Offense Exception

Generally, a noncitizen who is convicted of, or formally admits committing one Crime Involving Moral Turpitude (CIMT), is inadmissible to the U.S. without a nonimmigrant waiver.  However, there is an exception, commonly referred to as the “Petty Offense Exception,” that when applicable means a noncitizen is actually admissible to the U.S. 

A petty offense exception will apply if:

• The noncitizen must have committed/been convicted of only one CIMT (ever);

• The maximum penalty (written in the law at the time the offense occurred) is less than one (1) year; and

• The individual was actually sentenced to a period of less than six (6) months.

It is necessary to look at the criminal code for the year the offense occurred.  Petty Offense Exceptions are governed by the maximum penalty for that offense at the time the offense occurred.  Therefore, even if you only paid a fine or served time that was less than one year, if the maximum penalty written in the law for that offense requires serving over a year, then that will govern.  Please note, the Petty Offense Exception does NOT apply to drug related offenses.

Additional Resources

If you’d like to stay up to date on immigration news and issues that may impact you, you can get updates by email.  Click here to sign up now.  We also recommend checking out our YouTube and following us on LinkedIn for the latest developments and updates.  If you have any questions or want to schedule a consultation, contact Berardi Immigration Law today. 

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