I want to mention something here that will help other clients. Apparently, someone had filed a waiver while they had a criminal charge pending through the court for a certain offence. Let us just say that the offence was car theft, and essentially, the disposition was that the charge was eventually withdrawn. Hence, this person did not receive a conviction.
However, this person had filed for a waiver around Jan 2020 and it is still pending. The interesting thing to note is that this case was filed using ESAFE. I told this person that there is a high likelihood that the waiver will get denied for a few reasons.
The main reason is that not enough time has passed to show rehabilitation. The book talks about this issue in great detail. There is GENERALLY a 5-year window regarding being able to demonstrate that have met the waiting period to be "deemed rehabilitated." Note that rehabilitation is not just waiting the 5-year window though, since there is also a provision for a 3 year wait on certain offences. However, 5 years is the minimum safest period. There are also other specific things that you will need to do to show rehabilitation. It is not necessarily just waiting for the 5 years to be done. This depends on the case particulars though.
Note that I have seen denial letters from when people used other waiver providers. Apparently, the theme that I have seen is that they tend to want 5 years past the completion period of your punishment. Now note that the book also says that some offences will require a longer period than the 5 years. However, I think the main issue here is that some people are filing these waiver cases way too soon. There is a special formula that can be used to determine if your case has a high likelihood of success. We have shared some parts of this formula with the people that have been calling us from here.
However, the one big thing here is that in our opinion, we do not suggest that you file a waiver or even try to enter the USA while your court case is pending. I say this because you are really shooting yourself in the foot if you do this. This is because the regulations basically state that you will need a waiver based on the relevant conviction(s) you have and whatever you "voluntarily admit to." Now this part about admitting is not just verbally since it also includes in writing. Hence, you file a waiver for a pending car theft charge. See below:
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii), any alien convicted of, or who admits having committed, or
who admits committing acts which constitute the essential elements of-
(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or
conspiracy to commit such a crime, or
(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the
United States, or a foreign country relating to a controlled substance (as defined in section 802 of
title 21),
is inadmissible.
So, you see above that it is not necessarily always a conviction that can get you into trouble. The border takes note of this since you have now essentially admitted to stealing the car. Then you case gets dropped by the courts but you still find yourself inadmissible because of the voluntary confession. You may wonder why, and this is because you have voluntarily told CBP that you have stolen the car in Hamilton.
However, the Discount Waiver Companies will try to forcefully sell you a waiver where you may not even need one. This also includes filing for one where it is not always in your best interest. The aforementioned individual with the car theft offence will now likely have to get a waiver every couple of years for the rest of the person’s life.
It is too bad that this person did not call before a waiver case was filed. I would have told this person that we should maybe hold off until the courts are finished. Now this could take a year or 2 but you have to look at the bigger picture. Do you want to risk having to spend thousands on a possibly unneeded waiver over a lifetime, or do you become impatient and roll the dice?
So, in our experience, I feel that it might be a good idea to stay away from that border until your court case has been cleared. Then possibly contact us and we can go over what may happen when CBP notes that you had been previously charged with car theft but was acquitted. You are still not necessarily out of the woods just yet since they may try to lean on you to get you to admit that you actually stole a car. Hence, the cycle has repeated itself and you have now voluntarily talked yourself into needing a waiver.
On a slightly different note, apparently the DWCs will try and pressure you to give them a credit card number during your first phone call. In our opinion, I suggest that you refrain from doing this until you are comfortable with the service provider’s knowledge and level of experience.
Finally, I will have to rethink my former ESAFE comment when I said that it is good for less complex cases. The car theft case is less complex, but it has still been pending for a year now. Remember, that ESAFE is not a guarantee that your case will be processed fast since it is all about the particulars relating to each case. Do not believe any waiver provider that says it is a guarantee or 100% guarantee of a waiver approval since every case is different.
Ken Scott
Senior U.S. Immigration Law Intelligence Analyst
www.usentrywaiverservices.com
888 908-3841
604 332-9213
