I am 68-years-old and would like to continue to travel to the United States for my job. However, I do not want to continue to apply for nonimmigrant waivers. Is there a more permanent solution?

Question:

I am a Canadian citizen. In 1980, I was arrested and charged with theft. At trial, my lawyer advised me that it was in my best interest to plead guilty to the charges. My attorney stated that it was the best option considering the facts of the case. I was subsequently convicted and ordered to serve 10 months in jail. I served half of my sentence before being paroled for the remainder of my sentence.

Five years ago, I applied for admission into the United States, as I had done numerous times before, to inspect heavy machinery for my company. At the border, the inspecting officer questioned me about any possible criminal convictions. To my surprise, the officer informed me that due to my 1980 criminal conviction I could no longer enter the United States. The officer explained that I would first have to apply for, and be granted, a nonimmigrant waiver. I could not believe that I was being denied entry for a conviction that took place over 20 years ago! I have no other criminal record.  

I am 68-years-old and would like to continue to travel to the United States for my job. Is there a more permanent solution other than applying for nonimmigrant waivers? I do not want to continue to apply for waivers.

Answer:

I hear more and more cases of people, such as you, being denied entry into the United States after years of crossing the border. In most cases, people were denied admission into the United States after only a single conviction, and a lot of the convictions took place many years ago.

If you are seeking a permanent solution, you may consider vacating your conviction. The process of vacating a conviction may take many months, if not years, and can be very expensive. That being said, you should consult an experienced criminal law attorney before moving forward.

As a warning, current legal precedent limits your ability to vacate convictions. A conviction must be based on a constitutional defect during the criminal proceeding (e.g. ineffective assistance of counsel), and may not be for immigration purposes only. In other words, the fact that you are now inadmissible to the United States is not a sufficient reason for vacating a conviction under U.S. immigration law.

As I mentioned above, you will have to determine what option makes the most sense. While a waiver is not a permanent solution, given the facts of your case, it may be your best option. If you ultimately choose to move forward with a nonimmigrant waiver, we would be more than happy to assist you with that process. However, if you would like to attempt vacating your conviction, we would be more than happy to assist you with that process as well.

Finally, if you decide to go the waiver route, we can discuss a discretionary form of relief called parole. Parole is a legal fiction that allows otherwise inadmissible people into the United States for a brief period of time. Unfortunately, ports of entry have greatly restricted their use of parole absent exigent circumstances. Nonetheless, we may be able to work with our local Port of Entry, the Peace Bridge Port of Entry, to have you paroled in for business related activities.