“Criminal Inadmissibility: The Petty Offense Exception”

MYTH: If you have ever been convicted of a any criminal offence, you are automatically inadmissible to the United States and must apply for a waiver.

“Hello, Attorney Ortega, I need a waiver and I need it fast. I’m booked on a flight to Miami that leaves in a week to attend a convention, and I just found out that I’m inadmissible.”

“Have you already been refused entry to the United States?”

“No, but?”

“Then what makes you think you’re inadmissible?”

“Well, I have a criminal conviction.”

“All right, we’ll get to that in a second; why do you think that you’re inadmissible?”

“A friend of mine told me that having a criminal conviction makes me automatically inadmissible. So I called the U.S. embassy, and they confirmed it and said I would definitely need a waiver. They told me it would take 20 weeks to process, but I can’t wait that long!”

“What was the conviction for?”

“Drunk driving.”

“Is that your only conviction?”

“Yes.”

“What was the sentence?”

“Three years probations, plus I had to pay a fine and go to traffic school.”

“Anything else?”

“No, that’s it.”

Our offices in San Francisco, London and Montreal receive frantic telephone calls like the one quoted above on almost a daily basis, from people about to embark on a trip to the United States who have been told that they are inadmissible to the United States because of a past criminal conviction. By the time we speak with them, many of these people are almost resigned to canceling their travel plans.

These individuals have been told by their employers, their colleagues, or even the U.S. embassy that their single criminal conviction makes them inadmissible and that they must apply for a waiver — which could take from 6 months to a year to process. That’s when the panic sets in. Airline tickets have already been purchase, and hotel rooms reserved; friends and family are eagerly awaiting at the other end. “Isn’t there a faster way to get a waiver?” they ask.

In fact, many individuals may not be inadmissible at all regardless of their conviction. Or if they are, they may qualify for what is known as the “petty offense exception” set out in section 212 of the Immigration and Nationality Act (“the Act’).

According to the Act, a noncitizen who has been convicted, or who admits the essential elements, of a crime involving moral turpitude (“CMT”) is inadmissible. Thus, the first thing to consider is whether ones conviction falls under the CMT category or not. By way of example, a single drunk driving conviction does not fall under this category, and does not render one inadmissible. In other words, a waiver is not required in this circumstance. However, the question of whether a particular offense is or is not a CMT requires some research.

If research reveals that one has been convicted of even a single CMT, then one is clearly inadmissible under the Act. However the Act sets out an exception that has come to be known as the “petty offense exception”. To qualify for the “petty offense exception”, an applicant for admission to the United States must show:

• he or she committed only one crime;
• the maximum penalty possible for the crime did not exceed imprisonment for one year; and
• the noncitizen seeking admission was not sentenced to a term of imprisonment longer than 6 months.

Clearly, the only way to determine whether one meets the above elements of the exception requires an examination of both the conviction documents and the underlying law of the offense.

The good news is that if one satisfies the requirements of the “petty offense exception”, one may enter the United States without first visiting the embassy or enduring the lengthy and onerous burden of applying for a waiver.

Ultimately, the decision to admit or not to admit in such a case lies entirely in the hands of the inspecting officer at the U.S. port of entry. This officer is the person that must be convinced whether or not one is admissible under section 212 of the Act. Thus, to properly claim the “petty offense exception” it is essential that one be armed with the evidence and (preferably) the applicable legal authority.

Orlando Ortega-Medina is lead counsel for the United States business immigration law firm of Ortega-Medina & Associates, headquartered in San Francisco, California. Prior to practicing in the field of business immigration and consular law, Mr. Ortega-Medina practiced both Criminal Defense and Deportation Defense in the state of California. Further, over the past five years he has represented scores of individuals from both the UK and Canada in a myriad of waiver matters. Thus, he has particular expertise and insight into the issue of criminal inadmissibilty and its effects on both non-immigrant and immigrant visas.