Non-US citizens with a criminal record must disclose it to immigration authorities to enter the US. A criminal record search is part of the visa application process. Citizens of visa waiver countries and Canada must submit an Entry Waiver form, disclosing all arrests and convictions. The waiver is valid for one trip only and must be obtained for subsequent travel. The US takes a strict stance on admitting detainees from other countries, and even minor offenses must be disclosed. Processing an entry waiver can take up to a year, and there is no guarantee of approval.
It is generally illegal for any non-US citizen with a criminal record to enter the United States unless that criminal record has been properly disclosed to immigration authorities. Many travelers to the United States are required to obtain a visa before arriving, and a criminal record search is part of the visa application process. For others – citizens of US visa waiver countries and Canada – all arrests and disclosures must be made on a US Form I-192, also called an Entry Waiver form. The entry waiver must be submitted well in advance of traveling to the United States, and an approved copy must be given to immigration officers upon entry. Travelers with a criminal record who attempt to cross the border without a visa or approved entry waiver are generally subject to deportation, arrest and forfeiture of property.
The purpose of an entry waiver is to allow people convicted of certain crimes to get around the rule that prohibits convicts from crossing U.S. borders. US immigration law takes a very strict stance against admitting detainees from other countries, even for short periods. With an entry waiver, Canadians and citizens of some European and Asian countries who do not require a visa must declare any previous arrests or convictions in advance of their arrival. Official court records, any arrest records and fingerprints must also be presented. If all of this is provided to the Immigration Services, the Immigration Services may choose to waive the entry bar for the applicant.
All transgressions, no matter how minor, must be described on the form, with the exception of driving offenses for Canadians. Canadians convicted of drunk driving or arrested for drunk driving are usually required to carry conviction papers when they travel, but driving offenses alone are generally not sufficient to request a waiver. However, the immigration authorities still retain the right to refuse entry. Canadians who are unsure whether their driving records are preventing their entry into the United States should speak with an immigration attorney or other expert before traveling.
Crimes that have been pardoned or canceled are usually not exempt. The US position is that any conviction or arrest is sufficient to prevent entry, even if a criminal’s national government has condoned the crime. Immigration officials have access to international arrest and warrant databases and can often see criminal records that travelers have not disclosed. If such a traveler shows up at a border crossing without an entry waiver, he is subject to arrest for illegal entry.
Processing an entry waiver can take anywhere from six months to a year, and there is no guarantee it will be approved. In case of refusal, the applicant can apply again. However, even an approved waiver has a limited shelf life and is generally only valid for one trip. You must obtain a new exemption for subsequent future travel.
In practice, this means that foreigners with a criminal record must go through the Entry Waiver Program every time they want to enter the United States, for the rest of their lives. Even if an opt-out has been approved, there is no guarantee that subsequent applications will be approved. Immigration officials reserve the right to deny entry waivers for almost any reason.
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