In an unannounced and somewhat surprising move, the U.S. Immigration and Naturalization Service (INS) has begun issuing waivers with five-year validity dates, rather than the usual one-year term – an apparent compromise between the traditional short-term waiver and permanent border-crossing card.

A couple of years ago, the INS announced that it would recall all border crossing cards and replace them with a new type of card. At the same time, it tightened the requirements for waivers.

The newly extended waiver appears to be a substitute until the new border card is available.

While there are many reasons that someone might be inadmissible to the U.S., the most common needs for waivers allowing their holders to cross the border are criminal records or previous Immigration Law violations. Often the grounds are permanent, so the waiver is the only way such a person can legally enter the U.S.

The INS reviews the driver’s record and reasons for seeking entry to the U.S., and determines whether they’re sufficiently rehabilitated, eliminating any threat to the U.S. Generally, this means that the trucker has to show at least three years or more with a clean record since his last conviction.

A criminal offence can make a person permanently inadmissible to the U.S., even for offences that occurred many years ago. Waivers are generally valid for only one year, and a driver would need to renew the waiver every year to gain admission. The INS recognized that the annual renewal process was unnecessary for some applicants who may have had one relatively minor offence, long ago. For many years, the INS issued border-crossing cards to individuals in cases where there was a low probability of any repeat violations. These cards were valuable because they gave the holder peace of mind and relief from the time and expenses associated with an annual renewal.

Unfortunately, the INS scrapped the old border card a couple of years ago, both because of the indefinite term as well as the desire to update the card technology for identification purposes. New cards were proposed to contain some sort of biometric identifier, such as a machine-readable fingerprint, and a term limit of five years. The INS has announced that all persons holding border crossing cards will have to surrender them as of a certain date and apply for the new card. Because of delays in implementing the new card, the surrender date has been extended several times, and currently has been set at September of 2001.

At the same time that the INS suspended issuance of border crossing cards, it also announced changes in procedures for waiver processing. The most significant changes were an increase in filing fees and the requirement for annual current RCMP and FBI fingerprint search reports. The changes in FBI background fingerprint clearance procedures caused an increase in the processing time for waivers. Waiver applications and processing times vary from district to district (Seattle, Detroit, Buffalo, etc.), and can range anywhere from three to six months or more. There is also preparation time for the applicant before the actual filing, because the applicant has to obtain a new RCMP report each year, a procedure that can take at least a month or more. The INS recommends waiver applications be filed at least six months in advance. When you add in the time required for obtaining the RCMP and other preliminary steps, the applicant is required to begin the renewal process almost as soon as he receives approval for the one-year waiver. When you also factor in the filing fees and fingerprint processing fees, which exceed US $200, the system of annual waivers was both costly and time consuming. The new five-year waiver relieves a great deal of that pressure.

As noted above, each INS district office has control over the procedures and approval periods for waivers. It is too soon to tell whether all District Offices are routinely issuing five-year waivers. Also, even in the offices that are issuing them for five years, the INS always has the discretion to approve it for a shorter time if circumstances justify it. In the past, some offices gave all first-time applicants an original one-year term, and issued the border crossing card at the first renewal. However, it appears that the five-year waiver is the standard version now, even for first-time applicants.

The INS has made no announcement as to any proposed implementation date for the new card to replace the old border-crossing card. We will keep you updated on any developments on that subject. n

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.