Travelling to the US with a criminal record (and entering Canada with one)

Why a record matters at the US border

United States immigration law decides who may enter, not Canadian law. US officers have access to Canadian criminal record information through information-sharing agreements, and they can ask about arrests and convictions. Being refused can lead to a record in US systems that follows you on future trips.

Convictions that usually cause problems

• Crimes involving “moral turpitude” in US law, such as theft, fraud, many assaults with intent to harm, and robbery.
• Any drug offence, including simple possession. Admitting past use of drugs that are illegal under US federal law, including cannabis, can also cause a refusal.
• Multiple convictions with total sentences of five years or more.
• A single impaired driving conviction often does not, on its own, make someone inadmissible, but officers have broad discretion, and repeat or aggravated cases can.
• US law has narrow exceptions, for example for one minor offence committed long ago or under age 18. Only a US officer can decide whether one applies.

A Canadian pardon does not fix it

A record suspension (pardon) seals a record in Canada, but the US does not recognize it and may already hold the information. A discharge or withdrawn charges are better outcomes, though US officers can still ask about the arrest. This is one reason to get legal advice before pleading guilty.

The US entry waiver (Form I-192)

• Apply to US Customs and Border Protection, usually online through its e-SAFE system, or at a port of entry.
• Include an RCMP fingerprint-based criminal record check, court records for each conviction showing the sentence and that it was completed, and a personal statement.
• Pay the US government fee, set in US dollars and over US$1,000.
• Expect several months of processing. A waiver is granted for one to five years and must be renewed.
• Never lie to a US border officer: misrepresentation can lead to a permanent bar.

Visitors entering Canada with a record

Canadian citizens can always return to Canada. Visitors and permanent residents with a conviction, in Canada or abroad, may be inadmissible under section 36 of the Immigration and Refugee Protection Act. Since December 2018, impaired driving is treated as serious criminality, so a DUI can keep a visitor out.

The options are: criminal rehabilitation (an application at least five years after the sentence ended), deemed rehabilitation (automatic for some single, less serious offences after ten years, not available for impaired driving since 2018), or a temporary resident permit for a justified trip.

If you are charged now

The outcome of a pending case matters more for travel than anything you can do later. A withdrawal, peace bond, diversion or discharge leaves you in a much better position than a conviction. A criminal defence lawyer can weigh these options with travel in mind.