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It’s the same old waiver, just a few new rules

I've heard rumors from truckers lately about the fact the U.S. Immigration and Naturalization Service (INS) is changing the waiver rules and doing away with the old border crossing cards.I have writte...

Daniel Joyce
Daniel Joyce

I’ve heard rumors from truckers lately about the fact the U.S. Immigration and Naturalization Service (INS) is changing the waiver rules and doing away with the old border crossing cards.

I have written on both of these points in the past, and there is certainly some truth to both comments. However, the good news isn’t as good as it may sound on the street. Fortunately, and the bad isn’t as bad as sounds, either.

Some people have thought that the new waiver rules will change the eligibility guidelines.

This would make sense, because the vast majority of waiver applicants are applying on the basis of rather minor offenses that often occurred many years ago.

It would make sense to think that the INS would revise the rules and bypass some of these minor or old offenses, eliminating the need for a waiver. Unfortunately, that has not happened, and that is not even up for review.

There is nothing being done to change the eligibility rules for waivers. The only thing being considered is switching to a waiver with a five-year maximum term, thereby eliminating the annual renewal process for most people.

As to the cancellation of border crossing cards, this rumor is correct. Currently, the INS intends to cancel all existing cards as of Sept. 30. These cards have served as “permanent” waivers, because they had no expiration date.

The INS has decided that all waivers should have an expiration date so that everyone is subject to review periodically.

Apparently, a five-year waiver is seen as a suitable compromise.

The final regulations have not been issued, so it is too early to comment on more than that. However, since the INS tells applicants to begin renewal procedures six months in advance, I would expect some sort of announcement by the INS soon, so that current border crossing card holders can begin renewal procedures.

So what are the basic eligibility guidelines for U.S. waivers?

Some people think that any criminal record in Canada requires a person to obtain a waiver. That is not the case, and many petty offenses do not impact admissibility. Most juvenile offenses (committed under the age of 18) are also not a problem.

Any narcotics violation, no matter how minor, will require a waiver. For non-narcotics charges, the important term used by the INS is “crimes involving moral turpitude” (CIMT).

A CIMT offense will require a waiver unless there is only one such offense and it was handled as a summary conviction. CIMT offenses are acts done contrary to justice, honesty, principle or good morals.

Common examples of CIMT offenses are theft, robbery, fraud, forgery, possession of stolen property, breaking and entering-with-intent, murder, rape and other sexual offenses, assault with a weapon. Other examples are the intent to commit a CIMT, or any conviction for conspiring or attempting to commit any of the above.

If the person has been sentenced to a total of five years or more for one or more offenses, they probably need a waiver, regardless of whether the offenses were CIMTs or not.

Keep in mind that there are many types of offenses in the Canada Criminal Code, and sometimes there is a question as to what constitutes a CIMT.

Evaluations at the border may be somewhat subjective. Unless there is a binding precedent from the U.S. Immigration court system, it is possible to get different opinions from different INS inspectors.

For example, certain borderline CIMT offenses such as intimidation, harassment and uttering threats may be viewed as a CIMT by one INS officer, and not by another.

It may be necessary to request a written determination from the INS District Office in such cases. Usually this can be done as part of a waiver application; the applicant can file the waiver application and ask for a determination of whether or not a waiver is required.

INS will then either issue a ruling letter as to admissibility, if a waiver is not required, or just issue (or deny) the waiver if one is required.

Also, keep in mind that the person should apply at the INS office that has jurisdiction over the border crossing that is expected to be used most frequently. This is usually, but not always, related to the applicant’s place of residence.

Some drivers don’t really have one primary border crossing, and this the may provide the applicant with a choice of INS office. Thus, it is possible for a resident of Ontario to apply through the Seattle office, or for a resident of B.C. to apply through Buffalo.

I have found that the various INS District Offices can vary significantly in processing times and procedures, so no matter where you apply, begin well in advance, in order to obtain your renewal or replacement. n

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

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