After years of travel to the U.S., I was recently found inadmissible for a criminal conviction in 1973. Do I need an INA § 212(d)(3)(A)(ii) waiver before I can reenter the U.S.?

Question:

I have been a frequent visitor to the U.S. for more than 30 years. I am a traditional Canadian snowbird who spends several months in Florida each year. Recently, I applied for a NEXUS card. During the NEXUS interview, the immigration officer asked me if I was ever convicted of a crime. I honestly answered yes. At the conclusion of the interview, the officer informed me that due to my conviction I was inadmissible to the U.S. and required a waiver. I was shocked.

The conviction in question was the result of a mistake I made many years ago. I was approached by a friend and asked to fill his prescription at a local pharmacy because he was too busy to do it himself. I thought I was doing my friend a favor and agreed to have the prescription filled. Unfortunately, unbeknownst to me, the prescription was forged and I was later arrested.

Now, I feel helpless that I cannot enter the U.S. In addition to my newly purchased home, my elderly mother also spends her winters in Florida. We live near each other and I am responsible for getting her to Florida and then taking care of her. At her age, she has a variety of health concerns and is unable to deal with cold northern winters.

Answer:

Thank you for your question. I am sorry to hear about the difficult position you are in. Believe me when I say that you are not alone. I have seen numerous cases of Canadians who traveled between Canada and the U.S. without incident and are now being haunted by long forgotten criminal convictions. That being said, I would encourage you to have your case thoroughly reviewed by an immigration attorney to confirm that you do in fact need a waiver. Filing a waiver takes time and money, and it is not a process you want to go through if you do not have to.

Form I-192, Application for Advance Permission to Enter as Nonimmigrant, [Pursuant to INA § 212(d)(3)(A)(ii)]

If you are required to obtain a waiver before entering the U.S., you will need to apply for an INA § 212(d)(3)(A)(ii) waiver. Based on the information you provided in your question, it is likely that you are inadmissible under INA § 212(a)(2)(A)(i)(I). Pursuant to INA § 212(a)(2)(A)(i)(I), any foreign national convicted of a crime involving moral turpitude or an attempt or conspiracy to commit such a crime, is inadmissible. As a Canadian, you will file your waiver by submitting a Form I-192, Application for Advance Permission to Enter as Nonimmigrant. Once you submit your waiver application (which can be done at certain Ports of Entry), the application will be forwarded to the Admissibility Review Office (“ARO”) for adjudication. In adjudicating INA § 212(d)(3)(A)(ii) waivers, the ARO relies on administrative decisions issued by the Board of Immigration Appeals (“BIA”). In particular, the BIA articulated in Matter of Hranka, 16 I. & N. Dec. 491 (BIA 1978), the following three factors to be considered: (1) the risk of harm to society if the applicant is admitted; (2) the seriousness of the applicant’s immigration or criminal law violations; and (3) the nature of the applicant’s reasons for wishing to enter the United States. Currently, the processing time for a waiver is nearing one year. Waiver renewals on the other hand have a quicker processing time of three to six months. 

Humanitarian Parole

Due to lengthy delays being experienced at the ARO, you may consider applying for humanitarian parole to accompany your elderly mother to Florida. Humanitarian parole is used to bring individuals who are inadmissible into the United States for a temporary period of time for a compelling reason. Compelling reasons include strong humanitarian reasons or reasons of significant public benefit. It is possible that accompanying your mother to Florida may rise to the level of a strong humanitarian reason. To prove such a need, you would likely have to show, among other things, that: (1) doctors advise your mother to avoid the harsh northern winters, (2) your mother’s physical and/or mental health require she be accompanied to Florida, and (3) you are the only individual able to assist her. The duration of your parole would be short, but it would likely provide you with enough time to ensure that your mother arrives safely.

If you have additional questions about the preparation of an INA § 212(d)(3)(A)(ii) waiver application or request for humanitarian parole, please consider calling the office and setting up a consultation. At that time, we can discuss your case in detail and prepare a strategy that best fits your goals.