If I was arrested but not convicted, do I still need to file a waiver?

A waiver application may be required even if you were not convicted of a crime.  Under INA §212(a)(2)(A), "any alien convicted of ... or who admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude . . . or (II) a violation of [a Controlled Substance Act], is inadmissible."

Under this provision, an alien who was not convicted of a criminal offense may still be inadmissible to the U.S.  For example, an alien who was charged with drug possession and admits to a CBP Officer that they possessed drugs is likely inadmissible to the U.S.  This is true even if the formal charges against the alien were ultimately dismissed, meaning there was never a criminal conviction in that particular case.

Further, the fact that a prior criminal offense has been pardoned generally has no effect on an alien's admissibility to the U.S.  While a pardon typically erases an individual's criminal record from the jurisdiction where the crime occurred, it does not change the fact that the alien was convicted in the past.  For that reason, foreign citizens with pardoned criminal records typically require a Waiver to enter the U.S.

Thus, if you were charged with a crime but were not actually convicted, or if you were pardoned from your criminal offense, it is possible that you may still need to file a Waiver application to visit the U.S.  To learn more about this process, you should consult with an immigration attorney to discuss the specific facts in your case and figure out if a waiver application is necessary.  

What is “Border Shopping”

If you have been refused entry at one border crossing, and subsequently attempt to enter the U.S. at a different border crossing, you may be accused of “Border Shopping” by a Customs and Border Protection Officer.  For example, if you are denied entry at the Peace Arch Border Crossing on January 1, and try to enter the U.S. through the Pacific Truck Crossing on January 3, you may be hassled by C.B.P. for trying to find an “easy” place to enter the U.S.

The reasons for being refused can vary greatly.  In some instances, individuals do not have sufficient ties to their home country and are deemed to have "immigrant intent."  In other situations, individuals are applying for a work visa and do not meet the requirements provided by U.S.C.I.S.

Although it is not against the law to attempt entry at a different Port of Entry, C.B.P. strongly frowns on this practice.  C.B.P. Officers do not want to overrule the decisions made by other Officers at other Ports of Entry, and will typically defer to the decision made by the original Port of Entry. Thus, it is not advisable to attempt entry at a different Port of Entry after you have been denied.

"Border Shopping" will likely lead to lengthy travel delays, and you may be denied entry again and asked to return to the original Port of Entry where you were refused the first time. If you have been denied entry to the U.S., your best option is to speak with an immigration attorney to figure out how to proceed with your case.

Juvenile offense exception

In general, foreign nationals with a prior criminal record who have not received a Waiver document from the Admissibility Review Office are inadmissible to the U.S.  As discussed before, the most common exception to this rule is for a single "petty offense" which did not result in more than six months of jail time.

Under INA § 212(a)(2)(A)(ii)(I), there is also an exception for a single offense which was committed while the applicant was a juvenile.  To qualify, the alien must have been under the age of 18 at the time of the offense.  An important note is that this exception is only available if at least five years has passed since the alien committed the crime or was released from confinement, whichever is later.

Additionally, in Matter of Ramirez-Rivero, the Board of Immigration Appeals decided that an act amounting to juvenile delinquency did not constitute a crime for immigration purposes, and thus could not form the basis for inadmissibility.  To determine whether an act constitutes a “crime” or a “delinquent offense,” the individual seeking entry should consult the standards contained in the Federal Juvenile Delinquency Act.

If you have been refused entry to the U.S. based on a crime that was committed while you were under the age of 18, you should consult with an attorney to determine if you are admissible to the U.S.  You do not want to file a waiver application unless it is required, since the application costs $585 and can take a lengthy amount of time to process.  If you qualify for the petty offense exception, consulting with an attorney can help clarify your situation with USCIS and save you time and money in the long run.

Misrepresentation at the border

Under INA §212(a)(6)(C), any alien who willfully misrepresents a material fact in order to procure a visa or admission into the United States is inadmissible.  As an example, this would happen if you tell a CBP officer that you are going to the U.S. for pleasure when you are actually going to work.  It can also occur if you apply for a visa and intentionally provide false information.  If you are found inadmissible under this section, you would have a lifetime bar from entering the U.S.

At the border, this situation can arise when a CBP officer "knows" you have misrepresented a material fact.  At that point, the CBP officer will direct you to secondary inspection where they will question you about prior statements you made and attempt to determine your intent.  This process can take a long time (in some extreme cases up to eight hours), and often results in the alien admitting to prior misrepresentation.

Overcoming the lifetime bar is not impossible, but it can be very difficult.  Depending on the facts and circumstances in your case, you may be able to successfully file for a waiver of the bar which would allow you to return to the U.S.  If you have been barred for misrepresenting a material fact to an immigration officer and hope to return to the U.S. in the future, you should speak with an attorney to see if there are any remedies available in your case. 

Overstaying your visa

When you enter the U.S. as a non-immigrant (i.e. you are not a U.S. citizen and do not have a green card), the immigration inspector will authorize your stay in the country up to a certain date depending on the purpose of your visit.  In general, individuals who enter the U.S. as a B-1/B-2 visitor for business/pleasure are permitted to remain for up to 6 months.  In other situations, such as L-1 status or TN status, your visit may be authorized for up to 3 years at a time.  

It is important to determine the date which you are required to depart the U.S after you are permitted to enter.  In some situations, this date will be located on the I-94 card stapled in your passport (typically only for individuals who enter on a visa).  If you remain in the country beyond that date, you will trigger significant immigration consequences and will have difficulty returning to the U.S. in the future. 

At a minimum, there is a Three-year bar for persons who remain in the US after their authorized stay has expired for more than 180 days, and who leave the US prior to the institution of removal proceedings. If you have been in the US more than one year after your authorized stay has expired, you would be subject to a Ten-year bar from re-entry.  Further, overstay can hamper your ability to obtain a visa in the future or adjust your status in the U.S.

It is possible to apply for a waiver of the bar due to overstay, but this is a lengthy and difficult process that you should seek to avoid.  If you have recently been denied entry due to a prior overstay, it would be prudent to contact an immigration attorney to determine the remedies that are available in your case. 

Can you be deported if you are not in the U.S.?

It would seem illogical that you could be "deported" from the U.S. when you are not physically present in the country.  However, this can happen in a rare situation if you have a non-immigrant visa or a conditional green card and leave the country without notifying U.S.C.I.S. of your change of address.

It is possible that after you left, U.S.C.I.S. issued a Notice to Appear before an immigration judge  to your last registered U.S. address to determine your status in the U.S.  Under INA § 212(a)(6)(B), "Any alien who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine the alien's inadmissibility or deportability and who seeks admission to the United States within 5 years of such alien's subsequent departure or removal is inadmissible."

Additionally, if you fail to appear for your Hearing, the Immigration Judge can go a step further and order you removed.  Under INA § 212(a)(9)(A)(iii), "Any alien who has been ordered removed under any other provision of law or departed the United States while an order of removal was outstanding, and who seeks admission within 10 years of the date of such alien's departure."

It is important to note that all of this can happen even though you are not in the U.S.  From the U.S. government’s perspective, the offense is failing to appear for a scheduled hearing.  If you fail to change your address before you leave the U.S. and are subsequently issued a Notice to Appear to that address, you could be ordered removed despite the fact that you never actually received the notice and are not physically present in the U.S. at the time of the hearing.

If you have been ordered removed and are hoping to return to the U.S., you will likely need to file form I-212: Application for Permission to Reapply for Admission into the United States After Deportation or Removal.  As always, it is prudent to consult with an attorney before filing any documents to see if you have any other legal remedies. 

Ties and Equities to your Home Country

Even if you have never been arrested for criminal activity, you may still be refused entry at the U.S. Border for several reasons.  Perhaps most common, intending immigrants are refused entry under INA § 212(a)(7)(A)(i)(I).  Under this section, "any immigrant at the time of application for admission who is not in possession of a valid unexpired immigrant visa...is inadmissible."

In this area of immigration law, there is a major distinction between intending immigrants and non-immigrant visitors.  An intending immigrant is an alien who seeks admission to the U.S. for residence, whereas a non-immigrant visitor is an alien who seeks a temporary stay in the U.S.  If you are an intending immigrant, you must have a valid immigrant visa to enter the U.S regardless of your nationality.  On the other hand, a large portion of non-immigrant visitors may enter the U.S. by merely obtaining a passport (e.g. Canadian citizens are admissible to the U.S. on their passport alone).  This determination depends on the visitor's nationality.  Those who cannot enter the U.S. on their passport alone must obtain a non-immigrant visitor visa at a U.S. Consulate or Embassy.

However, even if you seek admission as a non-immigrant visitor with a valid passport, Customs and Border Protection might believe you are an intending immigrant if you do not have sufficient ties and equities to your home country and deny your entry.  This can happen for a variety of reasons.  It often occurs where an alien has made numerous entries to the U.S.,  has no proof of employment, and/or has no proof that they will reside in their home country in the future.  Essentially, if the CBP officer does not believe you have a sufficient reason for returning to your home country, they may deny your entry to prevent the possibility of illegal immigration.

In most cases, the presumption that you are an intending immigrant can be overcome with sufficient proof of ties and equities to your home country.  However, it is impossible to know exactly what is required in each case, since the reasons for denial will vary from person to person.  If you have been denied entry as an intending immigrant, it is advisable to consult with an immigration attorney before your next attempted entry into the U.S. to figure out how best to proceed.  Often, attempting to enter the U.S. after you have been denied can lead to more serious immigration consequences, which can make it extremely difficult to gain admission in the future.