If you’re wondering, “Can I travel to the US with a criminal record?” the answer depends on several factors, including the nature of your offence, how long ago it was, and whether you’ve obtained a US Entry Waiver beforehand. Before attempting to enter the US, explore the legal pathways to admission so you’re not caught by surprise when you do present yourself at the border.
Key Takeaways
- A criminal record can make you inadmissible to the United States, but travel is often possible with a US Entry Waiver.
- US Entry Waivers are valid for one to five years, require thorough documentation, and a Canadian Record Suspension can help, but does not guarantee entry.
- CBP officers have discretion at the border, so do not rely on being waved through; legal guidance improves your odds.
What You Need to Cross the Border
Canadian citizens need one of the following to cross the border by land or sea:
- A Canadian passport (this is strongly recommended even though it’s not technically required).
- An Enhanced Driver’s License (EDL).
- A Trusted Traveller Program card.
- A Secure Certificate of Indian Status (SCIS) for Indigenous persons.
Canadian citizens travelling by air must have a Canadian passport that will be valid for the entire duration of their stay.
Canadian residents who are not citizens of Canada need a valid passport from the country where they hold citizenship and a valid US visa or ESTA authorization1 (if the person is from a Visa Waiver country).
The person also needs to have a clean criminal record. This is where things can get muddy. If you’re asking, “Can I travel to the US with a criminal record?” it’s better to deal with any complications before you leave Canada.
The Importance of Disclosure
If a Customs and Border Protection (CBP) officer asks you about your criminal record, honesty is the only policy. Even if your conviction is for a minor offence, lying about it could get you barred from entering the US for life.
CBP has extensive access to databases, even ones that you may believe are exclusive to Canadian courts. Be upfront about your situation, and if you’re refused entry, leave immediately. Do not attempt to argue with CBP.
If you’re unsure about what needs to be disclosed, work with a criminal lawyer beforehand and ask them, “Can I travel to the US with a criminal record”? Your lawyer can detail exactly what information you need to provide and how to present your situation appropriately.
CBP Discretion at the Border
Customs and Border Patrol (CBP) has the authority to grant admission to some individuals even though they have a criminal record. This might happen, for example, if the conviction is older or it’s for a minor offence.
However, it is not wise to rely on CBP discretion when you have a criminal record. Even a shoplifting offence can make you inadmissible. What one officer thinks is an excusable offence, another might take more seriously, and their decision can be affected by numerous factors that are out of your control.
If you’ve previously been denied entry, re-attempting to cross the border with a criminal record is a red flag for CBP. Don’t take chances. Get an answer to “Can I travel to the US with a criminal record?” before you go. The safest approach is always to apply for a proper US Entry Waiver rather than gambling on CBP discretion.
US Entry Waivers
A US Entry Waiver, formally known as a Waiver of Inadmissibility or a Form I-1922 is a document issued by US CBP that grants entry to the United States to people who are otherwise inadmissible. Waivers are time-limited, so if you need to continue travelling to the US, you will need to reapply before your waiver expires.
US Entry Waiver Application Process
If you’re wondering, “Can I Travel to the US With a Criminal Record from Canada with an Entry Waiver?” The answer is yes, but the process is intensive. Start well in advance of your planned travel date.
The application requires substantial documentation, including:
- Court records.
- Police reports and an RCMP background check.
- Letters of reference from employers or other people who can attest to your character.
- A personal statement detailing your circumstances and your efforts at rehabilitation.
- Proof of employment, community involvement, and family ties in Canada.
- Details about the purpose of your travel to the US, where you intend to go, and how often you plan to cross the border.
US authorities will be looking for evidence that you don’t present a risk to US national security or public safety, so your application should focus on that.
The Entry Waiver application process can take as little as six months, but can stretch to over a year. Keep in mind that US government shutdowns can delay the process further, even after the shutdown ends.
Common Reasons for Denial
Even a strong application for an Entry Waiver can be denied. Here are some typical reasons for that:
- Incomplete or inconsistent supporting documentation.
- Serious offences, particularly those involving violence, weapons, or drugs, and crimes of moral turpitude (crimes that are considered inherently immoral).
- Recent offences.
- Lack of demonstrated remorse.
- Insufficient evidence of rehabilitation attempts.
- Unconvincing character references.
To improve your chances of success, it can be helpful to work with an attorney or a paralegal who is familiar with the Entry Waiver application process. They know what CBP is looking for in a strong application and can help you make sure your application is accurate, complete, and persuasive.
Canadian Pardons
It’s a common misconception that getting a Canadian Pardon (now called a Record Suspension) eliminates problems with entering the US. Although it does help with legal matters in Canada, it does not erase your criminal record for US immigration purposes.
That said, having a Record Suspension can help with your Entry Waiver application by demonstrating to US authorities that you’ve taken steps toward accepting responsibility and rehabilitating yourself. It also shows that the Canadian government has recognized those efforts on your part. If you’re asking, “Can I travel to the US with a criminal record?” you’ll be in a stronger position with both a Record Suspension and an Entry Waiver.
Canadian Pardons Application Process
Before applying for a Record Suspension3, you’ll need to have completed your sentence and stayed crime-free for a specified period, typically 3 to 5 years for summary convictions and 5 to 10 years for indictable offences.
For the application, you’ll need:
- Certified criminal record from the RCMP, based on your fingerprints (you can have your prints taken digitally by a local police service).
- Official court documents showing the details of your offence and confirming that you’ve completed your sentence.
- Local police record check for the place you currently live and any other jurisdiction where you’ve lived during the past 5 years.
- Certified copy of a government-issued ID.
- Schedule 1 Offence Exception Form if applicable.
- Measurable Benefit / Sustained Rehabilitation Form
- The application itself, accompanied by a $50 application fee.
Working with an experienced criminal lawyer can help ensure that your application has a good chance of success.
Seeking Legal Advice
US inadmissibility issues can be complex, and if you make a mistake, the consequences can be very serious. An experienced lawyer can review your situation, assess whether you’re admissible, and advise you on your options.
Further, a lawyer can help you assemble the documentation you need for your application, whether that’s for a US Entry Waiver or a Canadian Record Suspension. Getting assistance with these processes will make your application go more smoothly with a better chance of a successful outcome.
What You Should Remember
- Having a criminal record can make you inadmissible to the United States, even if the offence is from a long time ago or was a minor offence.
- The answer to “Can I travel to the US with a criminal record?” is often “yes,” if you have a US Entry Waiver (Form I-192).
- US Entry Waivers are valid for 1 to 5 years and must be renewed before expiry. Application for an Entry Waiver requires comprehensive documentation.
- A Canadian Record Suspension (a pardon) can make your waiver application stronger, but does not guarantee US entry on its own.
- Customs and Border Protection (CBP) officials have some discretion over who they allow to enter the country, but you should not rely on them letting you through.
- Legal guidance can help ensure success with your applications for a US Entry Waiver and/or a Canadian Record Suspension.
If you’re applying for an Entry Waiver, a Record Suspension, or both, contact the team at Zamani Law. Led by renowned criminal lawyer Farid Zamani, we will guide you through the process and assist you in any way we can with your applications. Trust Zamani Law to restore your access to travel to the US.
References
- https://www.cbp.gov/travel/international-visitors/visa-waiver-program
- https://www.cbp.gov/travel/international-visitors/admission-forms/form-i-92-application-advance-permission-enter-nonimmigrant
- https://www.canada.ca/en/parole-board/corporate/publications-and-forms/applying-for-a-record-suspension.html
About the Author
Farid Zamani is the founder of Zamani Law, a GTA-based criminal defence firm committed to protecting clients’ rights with professionalism and compassion. After earning his law degree at Buckingham Law School in the U.K., Farid worked at Daley Byer Criminal Law for 12 years before launching his own firm. Farid is skilled in all areas of criminal law and has built a strong reputation for his adeptness in navigating complex cases and achieving successful outcomes. Dedicated to the community, Farid is the cofounder of the non-profit Children Without Borders and has contributed to many other charitable organizations.
