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IMPERIAL OIL

Sam's Yer Uncle

by Jim Park

Trying to get a straight answer from the U.S. government is like pushing a rope up a hill. Trying to get a knowledgeable answer from one of the thousands of 'truckstop lawyers' is just as challenging. Everybody seems to have heard something from a friend of a friend who told him that somebody she knows once said that it's perfectly legal to do so-and-so, provided that you were born under a blue moon during a month ending with the letter 'Y'.

So, to set the record straight, highwaySTAR called in a few markers and actually got one of those men-in-black types to answer a few questions. We also heard from one of our truckstop-lawyer friends about a really unpleasant experience he had recently with the U.S. Immigration and Naturalization Service (INS). Two lessons for the price of one.

Pardons and Waivers

At the tender age of 17, Steve (not his real name) was caught joy-riding in a car he and a few friends had hot-wired on a boring Saturday night. He paid his debt to society and went on to become a successful owner-operator and a prosperous entrepreneur at the same time. Years ago, he applied to the Canadian government for a pardon, received it, then took his case south to gain the necessary approval to truck down there. He was granted his waiver, got an 'I-94' card and went about his business.

Any questions from inquisitive officials at the U.S. border were answered with the presentation of the card. That is, until a Customs agent in Michigan told him he didn't need it any more, and took it from him. Years went by with no difficulty, until on a recent trip to Louisville to attend the Mid-America Trucking Show, Steve's past came back to haunt him. He learned, standing before an INS official at Toronto's Pearson airport, that U.S. waivers expire and must be renewed. He never made it to Louisville.

"I wasn't going to lie to him about my criminal record, and since I'd been through this process before, I didn't think it would be any different this time," Steve said. "Remember that scene from Midnight Express? My gut turned to liquid and that whole stupid Saturday night flashed before my eyes all over again."

For a driver, or worse, an owner-operator, being barred from the U.S. is a career-limiting move. Steve got lucky with his carrier, which has a significant Canadian operation. They just transferred him to their northern board. Others may not be so fortunate.

The problem seems to lie in a misunderstanding of the terms 'waiver' and 'pardon', as well as the conditions under which waivers are granted.

Paulette Gauthier-Roy of Pardon Inc., a Brampton, Ont., firm specializing in arranging pardons and waivers, says pardons are issued by the Canadian government and have no standing in the U.S. Waivers, on the other hand, are issued by the U.S. government as a means of granting entry permission to an otherwise ineligible person

The way Gauthier-Roy sees it, every Canadian convicted of a crime should apply for a pardon.

"The pardon seals your record from view so prospective employers won't know about the dark side of your past," she says. "The pardon doesn't erase the record, it just prevents anyone from using it against you."

Firms like Pardon Inc. process the applications, arrange for the fingerprint checks, and secure the necessary documentation for you, for a pretty modest fee. A pardon is good for life, provided you aren't convicted of another criminal act in the future. The pardon will be revoked if you're convicted again, and then your entire record will once more become public.

Pardons aren't recognized in the U.S. In order to gain entry to that lucrative market, you'll need a U.S. criminal record check and a waiver. Any Canadian driver can and should apply for an I-94 card at their earliest opportunity, Gauthier-Roy says. "If your record is clean, all you have to do is request one from any INS office. They'll do a brief interview and a record search by name. If you come up clean, they'll charge you US$6.00 and hand you your I-94 card.

"But don't think you can fool the FBI computers," she warns. "If a record shows up during the search, you'll be barred entry right then and there. Then you'll have a lot of explaining to do."

If you do have a record, but you've not been convicted of anything in the past five years, you may apply for a waiver, officially known as an I-194 card. That process involves at least two separate record checks and usually takes several months to complete. So Gauthier-Roy advises anyone with a skeleton in their closet to begin the process as soon as possible. And remember, the I-94 card proves you're clean; the I-194 card proves you've been granted permission to enter the U.S. despite your record.

And to complicate matters even more, an existing waiver must be renewed before its expiry date. In the past, waivers were granted for terms of up to eight or 10 years, but now INS seldom issues anything with a term longer than one year. That means you should begin reapplying at least six months before the current waiver expires.

The fees for all these tests, applications and checks aren't exorbitant, though applicants often find the process difficult and burdensome. For about $60.00 a month, however, Gauthier-Roy's firm and others like it can keep the process moving forward while you're out earning a living.

"The biggest mistake a driver can make is to let the process slip," she cautions. "Keep the waiver current and you'll never have any trouble at the border.

"Come September 2001, all current waivers will expire. So now is the time to get moving if you've got anything you'd rather the INS not find about at the wrong time."

As for our buddy Steve, he got some bad information and he didn't pursue his options. Now he's barred from the U.S. until he's issued a new waiver. Many drivers fall into an honest trap by not understanding the difference between each country's requirements. An INS officer may ask you if you've ever been in trouble with the law. If you answer, 'yes, but I have a pardon', you'll be turned away. Remember, the U.S. doesn't recognize that Canadian pardon.

Interstating and Stuff

While engaged in international commerce, Canadian drivers often come perilously close to violating the rules that other non-American workers are subject to. We all know it's illegal for Canadian drivers to haul freight from point to point in that country, right? So exactly what, we asked, are Canadian drivers allowed to do while operating in the States? Here's the response to a few questions we posed to Temple Black, a spokesperson for the U.S. Department of Justice in Washington.

Q. Are Canadian drivers permitted to physically load or unload the cargo they've transported into the U.S.? Also, is it legal to pay an unloader (lumper) a fee to the job? Does paying cash for the service to an individual constitute an employer/employee relationship?

A. Foreign drivers transporting goods to or from the United States may perform activities that are "necessary incidents" of international commerce, or a necessary function of delivery, such as loading or unloading international cargo. We are not aware of any law prohibiting a foreign driver from paying another individual to unload cargo.

Q. Are Canadian drivers permitted to 'drop' their trailers while in the U.S. for reasons such as repair or mechanical service, spotting at a dock for loading or unloading, recreational activities, etc?

A. Canadian drivers may drop a loaded trailer from Canada at a location in the United States, either for delivery purposes or because of mechanical difficulties.

Q. Can the Canadian driver make multiple pick-ups or deliveries while in the U.S., provided the entire cargo is destined for or originating in Canada?

A. A driver bringing goods from Canada may transport those goods to one or several locations in the United States, and may pick up goods from one or several U.S. locations for delivery to Canada. But the driver may not load, haul, or deliver a cargo that has its origin and its final destination within the United States.

Q. Can a Canadian driver switch trailers with another driver from the same company while in the U.S.? For example, if a southbound driver meets a northbound driver at a predetermined point, can the drivers drop and exchange trailers, with the southbound driver turning around and returning to Canada with the Canada-bound load, while the northbound driver turns back south to deliver the load that originated in Canada?

A. Canadian drivers delivering goods from Canada to a point in the United States (or traveling in the opposite direction) may meet at a drop yard or other location and switch trailers with another driver also delivering goods from Canada to a different point in the United States (or traveling in the opposite direction), provided that both drivers continue in an international move. A driver coming from Canada may not switch trailers with a Canadian driver coming from a point within the United States, when the driver coming from within the United States will only be returning to another point in the United States. In other words, both drivers must either enter or depart the United States with a load.

Q. Can a Canadian driver drop a trailer containing a load from Canada at a dock to be unloaded, but rather than remain with the trailer while it's being unloaded, pick up another pre-loaded trailer destined for Canada and return directly home with the new load?

A. Yes. The driver may pick up a loaded trailer and transport it to Canada. The driver may not, however, pick up either a loaded or empty trailer in the United States and transport that trailer to be dropped off at another point in the United States.

Q. Should the driver or the truck become disabled and unable to complete the trip, can another Canadian truck or driver, presumably from the same company, be used to continue the trip?

A. Yes, Canadian relay or relief drivers may be used to continue the trip.

So there you go, some of the mysteries of the INS unveiled. There'll likely be more questions arise from this, and we'll have another look at issues like these in the future. If you have any questions of your own, here's a couple of numbers to call:

INS national customer service center -
1-800-375-5283
Pardon Inc. (Paulette Gauthier-Roy) -
416-928-3239.

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