Canadian Hockey Player

QUESTION:  My husband is a Canadian citizen.  Prior to meeting me in 2007 he was in the USA on a P1 visa for his hockey season.  He was caught with a very small amount of cocaine and was told to plead guilty to a misdemeanor - possession of a controlled substance.  He had no prior charges or criminal history and was sentenced to only 2 years probation.  He was told, after the sentencing, that he would not be allowed to come back to the United States for 5 years.  We later learned that this is incorrect and that with a conviction of 'controlled substance' you are inadmissible for life. 

Since he is a professional minor league hockey player he has been on P1 visas since his conviction (without any gap of time in-between). He has not left the US since his conviction.  We have since gotten married (I am a US citizen) and purchased a home in the United States.  We have been told that he can apply for a waiver that will grant him permission to cross the border as frequently as needed (he has been missing at least 10 games/season due to not being able to travel to Canada).  Does he actually have to leave the US in order to apply for this waiver (since he is still legally here on a P1 visa)?  Any thoughts on this would be greatly appreciated.  Obviously, we are afraid that (worst case scenario) if he leaves the country, his waiver will not be accepted and he will lose his career, home, etc. 

RESPONSE:  Your husband is definitely in a difficult position with respect to U.S. immigration law.  You are correct that if he departs the U.S. he will not be allowed to re-enter until his waiver application is approved, which can take several months.  Unfortunately, current waiver application filing procedures require a departure from the U.S. and then an in-person application for admission at a U.S. port of entry that accepts these waiver applications.  

The Form I-192 waiver, upon approval, will allow your husband to travel across the border as frequently as needed.  It is the initial application and processing time that may cause him the most trouble.  He may also begin to experience difficulty crossing the border in light of the fact that he is married to a U.S. citizen.  U.S. immigration authorities will want assurance that your husband is only entering the U.S. temporarily and not to live here with you permanently. 

Right now, your husband is not eligible for permanent resident status in the U.S. due to his conviction.  There is no immigrant (permanent) waiver for a controlled substance offense.  The one possible avenue of relief if he does wish to become a permanent resident – which would also alleviate his current travel problems – is to pursue post-conviction relief in the criminal court of conviction.  A recent U.S. Supreme Court decision, Padilla v. Kentucky, provides that non-citizens entering plea bargains in the U.S. must be advised of the potential immigration consequences of such a plea.  Otherwise, grounds exist upon which to constitutionally vacate the conviction.  

While I cannot properly advise you without reviewing the specific facts of your husband’s case, it sounds as though it would be in his best interest to first investigate whether vacating his conviction is a possibility.  We often will work hand-in-hand with criminal attorneys throughout the vacating process to consult and advise in order to make certain that any substitute plea agreement does not carry adverse immigration consequences.    

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.