The five-year waiver system is coming, just don’t ask when

by Daniel Joyce

I recently met with one of the top U.S. Immigration and Naturalization Service (INS) officials in Buffalo. We discussed issues relating to waivers and border crossing cards.

It turns out that the Buffalo office is one of the busiest in terms of waiver application volume, and the information I gained from this conversation applies generally to all INS offices.

Before we get into the details, here is a run down of the basics as they apply to waivers.

A waiver is needed to overcome grounds of inadmissibility to the U.S. Although there are many different grounds of inadmissibility, the most common are based on criminal convictions or previous immigration violations.

Not all convictions make a person inadmissible, but, as a general rule, if someone is inadmissible to the U.S. due to one or more criminal convictions, the problem is permanent. The person is forever inadmissible unless he or she applies for a “waiver” of admissibility.

I have heard many people erroneously refer to the waiver as a “pardon,” perhaps because of the similarity of issues and the fact that many people pursue Canadian pardons and U.S. Immigration waivers at the same time.

However, it is not a pardon and the INS is not making any decision about the previous criminal conviction(s). A Canadian pardon eliminates the conviction and allows the person to portray himself in Canada as having a clean record.

In contrast, an INS waiver has no effect on the underlying conviction, and is merely a determination that the INS is willing to overlook your previous conviction and allow you entry into the country.

At one time, the INS issued border crossing cards to people with clear-cut waiver cases. Since these cards have no stated expiration date, they essentially operated as permanent waivers.

Individuals who did not qualify for the full-fledged crossing cards were eligible to apply for waivers on a year-to-year basis.

In 1997, the INS announced that it will eventually discontinue the border crossing cards, with the intention of substituting a new waiver regimen: a five-year waiver system.

This was a compromise between the border card of indefinite validity and the hassle caused by the annual waiver. Mind you, the INS would still likely be free to issue waivers for shorter time periods requiring frequent renewal.

With all of this in mind, here is a summary of the conversation I enjoyed with the official from the INS:

Q: What is the time frame for implementing the new five-year waiver system?

A: We are still unsure. We are hoping to have it in place in 2001, but there is no way to make an accurate prediction.

Q: If a person currently has a border crossing card, it is still valid?

A: Yes. When the INS announced the new system and discontinuation of the current border crossing card program, it announced a date through which current border cards would be valid. That date has been extended a few times, and now has been set at Sept. 30, 2001.

Q: Is it likely that the date will be extended further?

A: There is currently no indication that it will be extended further.

Q: Someone called me recently and said that his border card had been stolen. Can it be replaced?

A: No. If the person can prove that it was stolen, the INS can issue substitute documentation that is valid through September of 2001, but the INS will not issue a replacement card of the original type. (Yet another reason to keep duplicate copies of INS documentation at home or in some other safe place.)

Q: I have seen INS reports that show a high approval percentage for waiver applications. Is there any consideration to changing the rules so that waivers aren’t necessary anymore in some circumstances? Could certain types of offenses be treated as petty offenses not requiring a waiver or can a person be excused from the waiver requirement if the crime happened many years ago?

A: That would require legislative change, and there is no movement whatsoever to make any such changes.

Q: What is the current processing time for waivers?

A: Processing times have decreased in the Buffalo District, especially for renewals. Each application requires the INS to send fingerprints to the FBI for review and right now the average, well-documented case is taking three months in Buffalo. n

-Daniel Joyce can be reached at Hirsh and Joyce, Attorneys at Law, at 716-564-2727. This column is for information purposes only and is not intended as legal advice.

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