BUFFALO, N.Y. – If you have seen the application for a FAST card, you know that it is relatively simple. In fact, no one has ever called our office asking for assistance in completing the form for the first time. When we do receive calls, it is because of FAST card denials. Based on our conversations with individuals who have been denied FAST cards, as well as conversations with the US Customs and Border Protection (CBP) personnel involved in FAST card processing, we have developed the following information and conclusions:

* The FAST system is referred to by CBP as a “low risk” program. The purpose of the application process is to determine whether the individual applicant poses a risk of violating US laws or the terms and conditions of being a FAST card holder.

* The application process obviously disqualifies individuals who are not admissible to the United States, due to a prior criminal record, national security concerns, etc. However, there are individuals who are admissible to the United States, but are still denied FAST card privileges.

* Some individuals have obtained a waiver to overcome the problem of inadmissibility to the US. A person with a waiver is eligible for the FAST card. A person with a waiver is required to report in to CBP upon every arrival, while one of the features of the FAST lane is that the driver avoids such delays. Currently, a person with a waiver and a FAST card can use the FAST lane, but the driver will be required to report in to secondary inspection. The CBP is looking at ways to make the entry process more efficient for such waiver holders.

* Waiver applications undergo two types of clearance. The first is a computerized, “electronic” review of criminal history, immigration, Customs and national security databases, to determine eligibility. Individuals who pass the initial screening process, are then scheduled for individual interviews. In order for the driver to obtain the FAST card, he or she must receive both Canadian and US approval.

* The standard FAST application form asks, “Have you ever been convicted of an offense in any country for which you have not received a pardon?” This question has led to some confusion. Initially, there were questions as to whether a Canadian applicant needed a pardon in order to obtain the FAST card. The answer to that is, “No.” The reason the question is posed that way is because the form had to be structured to comply with the laws in both countries. Under Canadian law, an individual is not required to disclose a conviction for which he or she has received a pardon.

* Some criminal convictions make a person inadmissible to the United States, while others do not. A Canadian pardon is irrelevant for US immigration law purposes. At the time of the interview with CBP officials, the applicant is once again asked about a criminal conviction record, but this time it is made clear that the CBP wants to know about all convictions, including any for which a pardon has been received. It is quite possible that the CBP officer already knows, or has information that indicates, that an applicant has a prior conviction, even if he or she had a pardon.

The two biggest reasons for denial of a FAST Card are: Prior violations of law that call into question the applicant’s eligibility for this “low risk” program for this; and nondisclosure of relevant information during the FAST card application process.

Often, the nondisclosure relates to information that may not have affected the person’s eligibility for a FAST card. However, the nondisclosure of information raises questions about the person’s honesty and trustworthiness, such that the FAST card will be denied.

There is no appeal process for the FAST card.

Ninety days after a denial, an applicant can apply again.

If the applicant failed to disclose certain information the first time, he or she should provide a full explanation.

It is not sufficient to merely disclose the information that had been omitted the first time; the applicant will have to explain why the omission occurred, and convince the CBP officer that the omission does not reflect on the person’s trustworthiness and overall eligibility for the FAST card.

We are hearing more and more drivers who tell us that the FAST card is a condition of employment, and that the driver will lose his job if the FAST card application is denied.

For that reason, the driver sometimes is willing to take risks to overcome minor problems in the past, by not disclosing them and hoping that the CBP will not find them.

That is the wrong approach. For something as important as maintaining one’s employment, the attitude should be the opposite: disclose all important facts, and don’t try to play games with the system.

– Daniel Joyce is a partner with the Buffalo N.Y. law firm Jaeckle Fleischmann & Mugel LLP. He can be reached at (716) 843-3946.