The Petty Offense Exception

In general, individuals with a prior criminal record who have not filed a Waiver Application are inadmissible to the U.S.  However, there are certain situations where an individual with a prior criminal conviction remains admissible to the U.S., even though they have not filed a Waiver Application.

The main exception to the general rule is referred to as "The Petty Offense Exception."  This section of the Immigration and Nationality Act provides that an alien remains admissible to the U.S. if (1) they have only been convicted of one offense; (2) the maximum penalty for the offense was less than one year; and (3) the actual sentence imposed did not exceed six months.  If you have a prior criminal conviction which meets all three of these prongs, you should be admitted to the U.S. without having to file a Waiver Application.

Unfortunately, even though your conviction may qualify as a "Petty Offense," Customs and Border Protection (CBP) may still refuse your entry based on your prior incident.  This can occur because CBP does not have all of the information related to your prior offense in their system.  Thus, you may be refused entry and required to prove that your offense was in fact "Petty" before being admitted to the U.S.  If you cannot prove that your offense was "Petty," you may be required to file a Waiver Application despite being admissible to the U.S.

Although a Border Official might tell you that you need to file a Waiver Application, this is not always the case.  You do not want to file a Waiver Application if your prior conviction is a "Petty Offense," because you will have to pay an unnecessary $585 filing fee and will have to renew the Waiver once it expires.  Thus, if you have reason to believe that you are being refused entry based on a "Petty Offense," you should consult with an attorney to determine if you are admissible to the U.S.

The Basics of a U.S. Waiver Application

Certain individuals are inadmissible to the U.S. under Section 212(a) of the Immigration and Nationality Act.  The most common ground for inadmissibility is a prior criminal conviction or drug offense.  However, an individual may also be inadmissible based on health related grounds, or for National security concerns.

Regardless of the reason for your inadmissibility, you must file an I-192 application prior to entering the U.S.  This application is commonly referred to as a "Waiver" application.  It can be submitted at the U.S. Border with Customs and Border Protection (CBP) or through the mail with U.S. Customs and Immigration Services (USCIS).  The application must be submitted with supporting documentation which will vary depending on the basis for your inadmissibility (e.g. for a criminal conviction, you would need court documentation from your prior offense).  The filing fee for this application is $585, which must be paid even if your application is later denied.

On average, a waiver application takes 6 months to process, but this can vary greatly depending on the facts of the case.  If approved, the adjudicator in your case has complete discretion in determining the length of your waiver.  It could be valid for a period of 1, 2, or 5 years, depending on the reason for your inadmissibility.  Prior to the expiration of your waiver, you would need to file a renewal application. Initially, waivers are often granted for a shorter period, while renewals are typically valid for 2 to 5 years.

It is important to note that there are certain situations where an I-192 application may not be sufficient for you to enter the U.S.  For example, if you have a prior criminal conviction and entered the U.S. illegally or remained in the U.S. without legal status, you may have to file an I-192 and an 1-212, Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal.  For this reason, you may want to consult with an attorney to figure out what forms are required in your case.