Travelling to the U.S. With a Criminal Record
Canadians with a criminal record can be refused entry to the United States, even if they have travelled before without problems and even if they have a Canadian record suspension. U.S. border officers have access to Canadian criminal record information through shared databases, and the United States does not recognize Canadian record suspensions or pardons. Whether a person is inadmissible depends on U.S. immigration law, which looks at the offence, including whether it is a "crime involving moral turpitude", and at admissions as well as convictions. A person who is inadmissible may apply for a U.S. entry waiver, Form I-192, through U.S. Customs and Border Protection. Waivers can be granted for up to five years and are discretionary.
This article is part of the guide to criminal law in Canada.
The short version
- The U.S. does not recognize Canadian record suspensions.
- U.S. border officers can see Canadian criminal record information.
- Crimes involving moral turpitude, such as theft, fraud and some assaults, can make a person inadmissible.
- Drug offences, including some cannabis matters, and admissions of drug use can also cause problems.
- Lying to a U.S. border officer can lead to a permanent bar.
- An inadmissible person can apply for a waiver on Form I-192, usually valid for 1, 2 or 5 years.
- Get advice before travelling, not at the border.
Why Canadians Get Refused Entry
U.S. immigration law, mainly the Immigration and Nationality Act, makes some foreign nationals inadmissible for criminal reasons. Common grounds include:
| Ground | What it generally covers |
|---|---|
| Crimes involving moral turpitude (CIMT) | Offences involving dishonesty, such as theft and fraud, or serious intent to harm, such as some assaults and sexual offences |
| Controlled substance offences | Convictions for, or admissions of, violating drug laws, including some cannabis matters, even though cannabis is legal in Canada |
| Multiple convictions | Two or more convictions with total sentences of five years or more |
| Drug trafficking | Where U.S. officials have reason to believe a person was involved in trafficking |
| Misrepresentation | Lying to a border officer or on an application |
Whether a specific Canadian offence is a CIMT depends on how U.S. law interprets its elements. For example, simple assault is often not considered a CIMT, while assault causing bodily harm or with a weapon may be. Impaired driving alone is usually not a CIMT, but it can raise other questions, especially with repeat offences.
Exceptions
| Exception | General rule |
|---|---|
| Petty offence exception | A single CIMT where the maximum penalty is one year or less and the sentence was six months or less may not make a person inadmissible |
| Youth exception | A single CIMT committed while under 18, more than five years before applying, may qualify |
These exceptions are technical. Because Canadian hybrid offences prosecuted by indictment can carry maximum penalties over one year, the petty offence exception may not apply even to a minor offence.
Records That Are Not Convictions
U.S. law has its own definition of "conviction". As a result:
- a discharge in Canada may be treated as a conviction for U.S. purposes because it involves a finding of guilt
- a withdrawn charge or peace bond is not a conviction, but border officers may still ask about it and may delay entry until court documents show the outcome
- admissions made to a border officer about committing a CIMT or drug offence can make a person inadmissible even without a conviction
Carrying certified court documents showing the outcome of a past charge can help in some cases.
Record Suspensions Do Not Help at the U.S. Border
A Canadian record suspension removes a record from CPIC, but U.S. authorities may already have the information, and the United States does not recognize Canadian record suspensions. People with suspended records should still assume they may need a waiver. See record suspensions in Canada.
The U.S. Entry Waiver (Form I-192)
A Canadian who is inadmissible can apply to U.S. Customs and Border Protection for advance permission to enter as a non-immigrant, using Form I-192. Applications are commonly filed through CBP's online e-SAFE system.
| Item | Details |
|---|---|
| Form | I-192, Application for Advance Permission to Enter as a Nonimmigrant |
| How to apply | Usually online through CBP e-SAFE, followed by an appointment at a port of entry for fingerprinting |
| Documents | Typically an RCMP record check, court documents for each conviction, a personal statement and supporting letters |
| Fee | Set by U.S. authorities and subject to change. Check the CBP website for the current fee |
| Validity | Commonly granted for 1, 2 or 5 years |
| Processing | Often several months or longer |
| Decision | Discretionary, considering the risk of harm, the seriousness of the offence and the reasons for travel |
A waiver must be renewed before it expires. Each renewal is a new application.
Practical Steps Before Crossing
- Do not lie to a border officer. Misrepresentation can lead to a permanent bar. Remaining silent or withdrawing an application to enter is different from lying, but it can still have consequences.
- Know your record. Get an RCMP certified criminal record check and court documents for any charges.
- Get advice from a lawyer familiar with U.S. admissibility before travelling.
- Apply for a waiver early if you are likely inadmissible, because processing takes time.
- Before pleading to a charge, tell your Canadian criminal lawyer if U.S. travel matters to you, because some outcomes have far greater U.S. consequences than others.
Frequently Asked Questions
I've crossed many times with my record. Am I safe?
Not necessarily. Officers can deny entry at any time once they become aware of a record, even if a person has entered before. Once a person is refused, they will usually need a waiver for future trips.
Do I need a waiver for impaired driving?
A single impaired driving conviction usually does not make a person inadmissible on its own, but repeat convictions or related issues can. Get advice for your specific record. See impaired driving charges in Canada.
Can a cannabis record keep me out of the U.S.?
Yes. Cannabis is legal in Canada, but it remains illegal under U.S. federal law. Convictions, and in some cases admissions of past use, can lead to inadmissibility.
Does a withdrawn charge affect U.S. entry?
A withdrawn charge is not a conviction, but border officers may see the record and ask about it. Court documents showing the withdrawal can help. See diversion, withdrawn charges and discharges.
Worried about how a charge will affect travel? Search LawyerDirectoryCanada.ca for criminal lawyers by province and city.
Sources
- Form I-192: Application for Advance Permission to Enter as Nonimmigrant, U.S. Customs and Border Protection
- e-SAFE frequently asked questions, U.S. Customs and Border Protection
- Immigration and Nationality Act, section 212(a)(2): criminal grounds of inadmissibility, U.S. Code 8 U.S.C. 1182
- Record suspensions, Parole Board of Canada
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