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Immigration into USA

Waivers for Criminality and Inadmissibility

If you have a criminal record, you may have heard about getting pardons and waivers for work, travel, and other purposes. It is important to know the difference between the two so that you can apply for the one most suited to your purpose(s).

Pardons

A pardon is granted by the Canadian government, specifically the National Parole Board, and is ultimately a document which states that your convictions have been pardoned and that your criminal record has, in effect, been sealed. This means that any federal agency or department which has records of your convictions cannot disclose the information in the record without permission from you (through an Access to Information form) or the Solicitor General of Canada. Most people obtain pardons for two reasons: one, they wish to apply for jobs and do not want potential employers to know of their convictions, or two, peace of mind.

The biggest misconception about pardons, however, is that once a pardon has been obtained, a person can freely travel into other countries as well. A pardon is basically effective in Canada, and may not be recognized by foreign governments. The best example of this is the government of the United States, who can exercise the discretion to refuse you entry or require you to apply for a US waiver despite having obtained a pardon. By the same token, if you are asked by a US Immigration official at a border crossing whether you have a criminal record, you should tell him/her of both your record AND, if you have obtained one, your subsequent pardon from the Canadian government. Otherwise, you might risk being charged with not fully disclosing the facts.

There are minimal waiting periods for obtaining a pardon. If your conviction(s) was/were (a) summary conviction(s), the waiting period is 3 years from the time your sentence(s) was/were completed (when your jail time was satisfied and/or your fine was fully paid). If your conviction(s) was/were (an) indictable conviction(s), the waiting period is 5 years from the time your sentence(s) was/were completed. If you do not know if your convictions were summary or indictable, you can check with the courthouse in which you were convicted.

At this time, the processing time for obtaining a pardon is approximately 18 months or longer from the time your application is submitted. Under extenuating and extraordinary circumstances, the process may be expedited upon submission of documentation or other evidence of the reasons why the application must be processed within a shorter period of time.*

Waivers

As mentioned earlier, a pardon granted by the Canadian government is not necessarily recognized by foreign governments, and the United States government is a prime example. Depending on the type of conviction(s) you have and the length of time which has passed, the United States US CIS (Immigration and Naturalization Service) may require you to apply for a US Waiver of your record.

While there are no official waiting periods for applying for a waiver, our experience has shown that it is prudent to follow the ones required for applying for a Canadian pardon for a better chance of approval. However, other factors, such as the number of convictions and the nature of convictions, also come into play when deciding how long you should wait before applying. Basically, once you have obtained a waiver, the US government knows that it has “checked you out” and deemed it appropriate for you to enter the United States. While your entry into the United States is still (and always) left to the discretion of the Immigration Officer at the point of entry, having a waiver is strong support in favour of your admission.
The application process for a waiver is somewhat more complicated than applying for a Canadian Pardon. There are more forms and laws involved (US laws, of course), and the actual granting or denial of a pardon appears to be much more discretionary. As our office has had many years of experience in applying for waivers (and dealing with US Immigration in general), we are especially aware of the things US CIS particularly looks for when considering your application.

At this time, the average processing time for a waiver ranges anywhere from 3 months to 6 months and longer from the time the completed application is submitted.*

*All processing times are estimated and based upon the responses to our most recent applications. These are always subject to change based upon various factors including the circumstances of your particular case.