Since 911, the US is very strict to anyone that visits or immigrates. Before 911, people would fill out waivers until they would get a permanent waiver. That all changed after 911. We can see that it is becoming even harder under the current regime. Border security sharing has made it incredibly hard for both Americans and Canadians to visit each other's country. It is sad and ridiculous if you ask me.
You don't need a US waiver to cross the border if you were convicted or plead guilty to assault and DUI. According to INA which is the US immigration statute of law, if you are found guilty or admit guilt to a crime that is of moral turpitude, you are inadmissible to the US. All crimes apart DUI and assault are of moral turpitude. Moral turpitude is also quite a vague concept. If you read INA, many crimes do not involve moral turpitude but certain circumstances have to be taken into consideration. It is very hard to prove to DHS that your crime did not involve moral turpitude. Moral turpitude means you did the deed with evil intent and thus you are a danger to society.
As stated before, US immigration law also has some loopholes which are the following:
1) if your crime was tried summarily, was only one crime involving moral turpitude and the max sentence you could get is less than six months imprisonment according to US law, you don't need a waiver. This excludes prostitution/solicitation and any narcotic offences (including driving under the influence of drugs and getting caught with weed). This means you would need a waiver if it involved sex or any drug offences.
2) your crime was committed under the age of 18 and if you were released from prison for up to 5 years after 18, then you don't need a waiver. You fall under juvenile delinquency. If you did the crime under the age of 18 and got released 5 years later from prison when aged 18 at the time of sentencing than you need a waiver.
*** In cases 1 and 2, you will get a September Letter***
3) A canadian pardon is not recognized by US officials.
4) absolute discharges are generally tolerated by US officials. Conditional discharges are not because they involve probation. Peace bonds are tolerated as well because they are treated as deferred adjudication by US law.
5) Because INA stipulates that admitting guilt to committing a crime even though you were never convicted means that US border officials can deny you entry. Even though, you get your charges dropped, discharged or acquitted, they can see you were fingerprinted on CPIC and force you to admit your crime, thus denying you entry.
6) Even if your crimes did not involve moral turpitude, you cannot have spent more than 5 years in prison for this said crimes. Then you need a waiver.
A way to remove your fingerprints is to get a file destruction. It is up to the police force to destroy them and remove them from CPIC. It is not a guarantee but most police forces will agree if enough time has passed and you didn't get into trouble again. A pardon doesn't necessarily remove your fingerprints and a file destruction may be needed as well. Most police forces would agree to destroy them after 10 years if you have a crime free history. Off course, the 10 years start after your sentencing is complete. For absolute or conditional discharges/peace bonds/acquittals/stayed charges/ dropped charges, the timeframes vary between a day to 3 years.
Even though, your discharge should be removed automatically, most often than not, it is not removed. You need to take the steps to do so.
Don't ever lie to immigration officials. The general rule of thought is to remove as much information from CPIC as you can before travelling. If asked, say the truth.
At the end of day, we don't know what CBP see when you cross the border on CPIC even if you have a pardon or file destruction.
if you feel you will be denied, do the waiver. If you are deemed admissible you will get a September Letter. The only way to get one is to prove to DHS that your crime was not of moral turpitude. The circumstances have to be right and you qualify only if your situation meets conditions 1 or 2 as stated above.
We all agree that the whole system is a money grab.
1) Also, local police forces share info with US customs right now. Many provinces have agreements with states on sharing individual driver records. This includes any outstanding unpaid tickets. Any criminal charges can be downloaded onto a CBP database.
2) There is also Interpol. Any serious sexual offences or serious criminal activity will get you listed on Interpol. A pardon will never erase that info. Interpol is shared by all countries.
3) There is a no fly list. Getting charged can get you on that list.
4) There is APIS. Every passenger crossing US airspace will be screened 24 hours prior before bording their flight even though they will never land in the US. All your past criminal activity can be revealed and stored into APIS.
5) There are several other databases including gang members or missing children that are shared between both countries as well. This information can also be stored on CPIC.
Basically anything that will caught the eye of a CBP officer about you will most likely get you banned from entering the US. The best approach is to answer truthfully and show no fear. Don't look for confrontation. Remove as much info as you can from CPIC before traveling. If you've done these steps, you can risk it and go there without a waiver. If you are banned, then do the waiver next time. Never lie to US immigration officials no matter what. Might as well do the waiver from the start and avoid all the humiliation at the border.
The current regime is very hard on sex and drug crimes right now.
We need to be patient and hope for a change of laws in the near future. I believe as more and more people denounce these practices, change will come. There is hope.