USA Entry with a Criminal Record Simplified
Disclaimer: travel (border crossing) is currently restricted to essential travel only due to the COVID-19 pandemic; as a result, US Entry Waiver in-person filing and online processing is suspended until it is deemed safe to resume normal practices including fingerprinting procedures.
“Your kids” really want to go to Disney World, but if you’re honest you really want to see the famous Mouse in person too. Getting in the way of that? Your Canadian criminal record.
Travel to the United States with a criminal record is not advised, no matter how minor the offence(s). Even non-convictions (withdrawn, dismissed, stayed charges) can get you into trouble at the US/Canada border. The Americans (Customs and Border Protection) can see your Canadian criminal record, as we have a reciprocal information-sharing agreement with the US. The discretion to admit you into the US with a Canadian criminal record is up to the individual admitting officer at the port of entry; you could get lucky, many people do, but the alternative isn’t fun.
Nothing is black and white at the US border: there is a LOT of grey; misinformation online, anecdotes (from your friend’s brother’s aunt’s cousin), and officer judgment calls. Legally, if you have a Canadian criminal record you require a US entry waiver to travel. At ‘Suspend This’ we’ve heard countless stories of people travelling to the States for YEARS with no issue, and then all of a sudden they’re flagged and refused entry. Likely, nothing has changed. The admitting officer just decided, on that particular occasion, to look into your background a little further.
Your criminal record is not associated with your passport, and yes, you CAN still apply for a Canadian passport with a record. The Americans have to search your information in a separate database in order to view any criminal record details, which they don’t always do. Simply scanning your passport will not pull-up your offence(s).
To the knowledge of those in our industry, the Americans have access to the following:
- Convictions
- Pending charges
- Absolute discharges (within 1 year of sentencing)
- Conditional discharges (within 3 years of sentencing)
- Absolute and conditional discharges pre-1992, where a file destruction has not been granted
- Youth convictions prior to the 2003 Youth Criminal Justice Act
- Firearm prohibitions
They should not have access to:
- Non-conviction information (charges that did not result in a conviction, ie. withdrawn, dismissed, stayed, acquitted, not-guilty charges and peace bonds)
- Pardoned record information*
- Sealed youth (young-offender) criminal records
With everything in life, there are exceptions to the rules. For example, having one driving-related conviction on your criminal record does not make you inadmissible to the US. Have two DUIs? You’re probably still okay. One simple assault? Generally you’ll be allowed to travel. If you want to be guaranteed entry however we always recommend filing for a US Entry Waiver. If you don’t need one, you’ll be informed in writing by the Department of Homeland Security whose decisions override those of Customs and Border Protection officers as they are a higher authority. Unfortunately, if you’ve ever been refused entry you will need to apply for the waiver, as attempting to travel without a US entry waiver following a refusal can lead to further consequences.
Now the question on everyone’s mind: can I travel with a Canadian pardon? With this post being long-winded as-is, we have dedicated a separate blog to travel with a pardoned criminal record which can be viewed here (add link).
What about immigration issues? Overstays, deportations, a US criminal record? Find information here (add link).
How about arrests, police contact, non-convictions, and cannabis use? Details here (add link).
The border isn’t easy to navigate, nor is the application for the US entry waiver. The procedures, application forms, and requirements constantly change, and the filing can be frustrating. The Americans have recently introduced an online portal ( https://e-safe.cbp.dhs.gov/s/login/?ec=302&startURL=%2Fs%2F ), however in-person fingerprinting at the border is still part of the application process.
Questions on if you can travel without issue? Let us know!
The ‘Suspend This’ Team
Note: We hope to resume our travel waiver services shortly, however due to the pandemic-related uncertainty of the border re-opening we have currently suspended all related services as documents expire and changes to application procedures could be forthcoming. In the meantime, we are happy to offer free consultations and answer your questions!