In the effort to identify terrorism risks after the September 11th attacks, Congress passed the Maritime Transportation Security Act (MTSA) of 2002 to mandate that port workers obtain a Transportation Worker Identification Credential (TWIC), which includes criminal background, immigration status, and other security checks. Significantly, the federal law limits the convictions that can disqualify a worker from obtaining a TWIC. In addition, the law includes a process that allows workers to “waive” disqualifying offenses, and an appeal process for challenging the FBI rap sheet or other errors. Appeals and certain waivers are also available for immigration status issues.
It is a common misconception that an expungement is necessary to obtain a TWIC, if you have a felony offense on your record. While, in some circumstances, an expungement may be helpful, the general “waiver” process is often sufficient.
At enrollment, you provide identity documentation, sign a “disclosure form,” provide fingerprints for the background check, and pay the required fee for the TWIC. The TSA then conducts “security threat assessment” background checks for criminal history, immigration status, and terrorism/intelligence watch lists. If you are approved after the background check, you will pick up the TWIC card at the enrollment center. If you are potentially disqualified, TSA will send an “Initial Determination of Threat Assessment,” and you have the right to appeal mistakes and seek waiver of certain disqualifications.
You may apply if you are a U.S. citizen, lawful permanent resident, naturalized citizen or a nonimmigrant alien, asylee, or refugee who is in lawful status.
Applicants may be ineligible due to:
- Incomplete or false application information.
- Disqualifying criminal offenses and factors.
See Parts A, B and C below for information on disqualifying criminal offenses. In addition to the disqualifying criminal offenses listed below, TSA may determine that an applicant is not eligible for the application program based on analyses of the following:
- a) Interpol and other international information, as appropriate.
- b) Terrorist watchlists, other government databases and related information.
- c) Any other information relevant to determining applicant eligibility or an applicant’s identity.
TSA may also determine that an applicant is not eligible if the security threat assessment process reveals extensive foreign or domestic criminal convictions, a conviction for a serious crime not listed in Part A or B below (including some lesser included offenses of serious crimes; e.g. murder/voluntary manslaughter), or a period of foreign or domestic imprisonment that exceeds 365 consecutive days.
TSA may also determine that an applicant is not eligible based on analyses of records related to violations of transportation security regulatory requirements. These include security-related offenses at an airport, on board an aircraft, at a maritime port, in connection with air cargo and other regulatory violations.
PERMANENT DISQUALIFYING CRIMINAL OFFENSES
An applicant will be disqualified if he or she was convicted, pled guilty (including “no contest”), or found not guilty by reason of insanity for any of the following felonies regardless of when they occurred:
- Espionage or conspiracy to commit espionage.
- Sedition or conspiracy to commit sedition.
- Treason or conspiracy to commit treason.
- A federal crime of terrorism as defined in 18 U.S.C. 2332b(g), or comparable state law, or conspiracy to commit such crime.
- A crime involving a TSI (transportation security incident). Note: A transportation security incident is a security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area, as defined in 46 U.S.C. 70101. The term “economic disruption” does not include a work stoppage or other employee-related action not related to terrorism and resulting from an employer-employee dispute.
- Improper transportation of a hazardous material under 49 U.S.C. 5124 or a comparable state law.
- Unlawful possession, use, sale, distribution, manufacture, purchase, receipt, transfer, shipping, transporting, import, export, storage of, or dealing in an explosive or explosive device. An explosive or explosive device includes an explosive or explosive material as defined in 18 U.S.C. 232(5), 841(c) through 841(f), and 844(j); and a destructive device, as defined in 18 U.S.C. 921(a)(4) and 26 U.S.C. 5845(f).
- Threat or maliciously conveying false information knowing the same to be false, concerning the deliverance, placement, or detonation of an explosive or other lethal device in or against a place of public use, a state or government facility, a public transportations system, or an infrastructure facility.
- Violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961, et seq., or a comparable state law, where one of the predicate acts found by a jury or admitted by the defendant, consists of one of the permanently disqualifying crimes.
- Attempt to commit the first 4 crimes of this section.
- Conspiracy or attempt to commit the last five crimes in this section.
INTERIM DISQUALIFYING CRIMINAL OFFENSES
Conviction for one of the following felonies is disqualifying if the applicant was convicted, pled guilty (including ‘no contest’), or found not guilty by reason of insanity within seven years of the date of the application; OR if the applicant was released from prison after conviction within five years of the date of the application:
- Unlawful possession, use, sale, manufacture, purchase, distribution, receipt, transfer, shipping, transporting, delivery, import, export of, or dealing in a firearm or other weapon. A firearm or other weapon includes, but is not limited to, firearms as defined in 18 U.S.C. 921(a)(3) or 26 U.S.C. 5 845(a), or items contained on the U.S. Munitions Import List at 27 CFR 447.21.
- Dishonesty, fraud, or misrepresentation, including identity fraud and money laundering, where the money laundering is related to a crime listed in Parts A or B (except welfare fraud and passing bad checks).
- Immigration violations.
- Distribution, possession w/ intent to distribute, or importation of a controlled substance.
- Kidnapping or hostage taking.
- Rape or aggravated sexual abuse.
- Assault with intent to kill.
- Fraudulent entry into a seaport as described in 18 U.S.C. 1036, or a comparable state law.
- Violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) under 18 U.S.C. 1961, et seq., or a comparable state law, other than any permanently disqualifying offenses.
- Voluntary manslaughter.
- Conspiracy or attempt to commit crimes in this section.
UNDER WANT, WARRANT OR INDICTMENT
A person will be disqualified if he or she is wanted or under indictment in any civilian or military jurisdiction for a felony listed under Part A or Part B until the want or warrant is released or the indictment is dismissed.
OBTAINING A TWIC® CARD WHEN YOU HAVE FELONY CONVICTIONS
Under the TWIC law, there are “permanent disqualifying criminal offenses” and “interim disqualifying criminal offenses” that can result in the denial of a TWIC. Both types of disqualifying offenses only include felonies, not misdemeanors.
Most of the disqualifying crimes fall into the “interim” category, which means they only prevent someone from obtaining a TWIC if the conviction occurred during the 7-year period before the individual applies for a TWIC card, or if the person was released from incarceration during the 5-year period before the person applies for a TWIC card (whichever is later). All of these offenses can be “waived,” through the TSA TWIC® application waiver process, as described later, and an expungement may not be necessary.
Interim disqualifying felonies include (all eligible for a TSA waiver):
- Assault with intent to kill
- “Dishonesty/fraud/misrepresentation” (not including welfare fraud or writing bad checks). Note: This is a broad category that has not been defined, but TSA tends to view these as offenses where dishonesty, fraud or misrepresentation is a central element of the crime, such as identity theft, income tax evasion, etc.
- Drug offenses, including distribution of, possession with intent to distribute, or importation of a controlled substance
- Fraudulent entry into a seaport in violation of 18 U.S.C. § 1036 or comparable state law
- Immigration violations
- Kidnapping or hostage taking
- Rape or aggravated sexual abuse
- A violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act or comparable state law, other than a RICO violation based on a predicate act that is one of the permanent disqualifying offenses
- Weapons offenses, including unlawful possession, use, sale, manufacture, purchase, distribution, receipt, transfer, shipment, transportation, delivery, import, export, or storage of, or dealing in, a firearm or other weapon
- Conspiracy or attempt to commit any of the above crimes
The list of permanent disqualifying offenses includes four serious security-related crimes that cannot be waived, as well as several offenses that can be waived. “Permanent” means that these offenses could disqualify a worker from receiving a TWIC no matter when the conviction occurred, and regardless of when the worker was released from incarceration. Thus, they are lifetime disqualifications, although most may still be waived. Below are the specific offenses that fall into each category.
Permanent disqualifying felonies that are not eligible for a TSA waiver:
- Espionage or conspiracy to commit espionage
- Sedition or conspiracy to commit sedition
- Treason or conspiracy to commit treason
- A federal terrorism crime (as defined in 18 U.S.C. § 2332b(g)), a crime under comparable state law, or conspiracy to commit such a crime
Permanent disqualifying felonies that are eligible for a TSA waiver:
- A crime involving a “transportation security incident” (under TSA regulations work stoppages or other nonviolent employee-related action resulting from an employer-employee dispute are not “transportation security incidents”)
- Improper transportation of hazardous material in violation of 49 U.S.C. §5104(b) or comparable state law
- Unlawful possession, use, sale, distribution, manufacture, purchase, receipt, transfer, shipment, transportation, delivery, import, export, storage of, or dealing in an explosive or explosive device
- Making any threat or maliciously conveying false information concerning the deliverance, placement, or detonation of an explosive or other lethal device in or against a place of public use, a state or other government facility, a public transportation system, or infrastructure facility
- A violation of the Racketeer Influenced and Corrupt Organizations (RICO) Act or comparable state law, if one of the predicate acts is one of the permanent disqualifying crimes
- Conspiracy to commit any of the crimes in this list
- Attempt to commit any of the permanent disqualifying offenses
Unfortunately, not all expungements erase a criminal conviction for purposes of the TWIC eligibility or waiver. Under TSA rules (49 C.F.R. 1570.3), a conviction is only considered expunged (and no longer disqualifying) if it is “removed from the individual's criminal history record, and there are no legal disabilities or restrictions” other than the fact that it can still be used for sentencing purposes for subsequent convictions. The Louisiana legislature attempted to craft its revisions to the new expungement law specifically to make TWIC® qualification easier for certain individuals; however, it is unclear if federal authorities agree that Louisiana’s expungement law technically complies with the federal definition of “expungement.” Further, because the waiver process described below applies to convictions after 7 years have passed, and Louisiana expungements are often only available to felonies after 10 years have passed, the waiver may be available to felons before they would be eligible for an expungement.
Even if a Louisiana expungement does not erase a conviction for TSA purposes, official documentation of the expungement should be submitted as part of a waiver application, if available, because it is strong proof that the applicant is rehabilitated and does not pose a security threat. In reality, though, an expungement may not be necessary for TWIC qualification because the waiver process is so robust.
Waiver—The Best Remedy
The TSA encourages applicants with disqualifying convictions who pose no security threat to apply for a waiver of the disqualification by showing that they are not a terrorism risk. Workers should routinely seek a TSA waiver in these situations. In fact, TSA granted the majority of waiver applications received under the old TSA hazmat driver background check program, and it should be no different with the TWIC program.
Workers who have most “permanent” disqualifying crimes and all “interim” disqualifications can apply for a waiver from TSA, and the agency will generally waive a disqualification if the applicant “does not pose a security threat.”
In evaluating the waiver application, TSA will primarily look at the length of time the applicant has been out of prison if sentenced to incarceration, the applicant's history since the conviction, the circumstances surrounding the conviction, and references from employers, probation officers, parole officers, clergy and others who know the applicant and can attest to his or her responsibility and good character.
An expungement is not a prerequisite to obtaining a waiver in most circumstances, and while an expungement certainly is strong proof that the applicant has been rehabilitated and “does not pose a security threat,” many—if not most—waivers are granted without an expungement.
The waiver application should consist of a letter or “personal statement” from the applicant explaining the reasons why the applicant does not pose a security threat and documents to support the waiver argument. The personal statement must include the circumstances that led to the conviction (note that expressions of remorse for criminal activity are generally viewed more favorably than a claim that it was the police, a friend, or someone else's fault) and the reasons why the worker is not a security threat. This description should include the length of time since the conviction or release from incarceration and a description of what the worker has done since the conviction/release from incarceration, particularly employment history, community service activities or other types of rehabilitation.
It is also very important to submit as many of the following documents supporting the waiver application as possible:
- Official documentation showing that the applicant has complied with probation guidelines and all terms of the sentence, paid restitution/fines, and, if applicable, expunged the conviction.
- Proof of rehabilitation such as a certificate of completion from a rehabilitation program, drug treatment program, etc.
- Letters of support from employers, probation/parole officers, clergy, community leaders, elected officials, and family members describing the applicant's good character and the reasons why the applicant is deserving of a waiver. A letter from an employer emphasizing the worker's dedication and rehabilitation is particularly persuasive.
- Awards, recognition or positive performance reviews received since the conviction.
- Sentencing report or transcript that contains favorable information on the circumstances surrounding the crime.
- Any other information that would help TSA determine that the worker does not pose a security threat.
A TSA Waiver Review Board reviews every application and makes a recommendation to the Director of Security Threat Evaluation, who decides whether to grant the waiver. TSA will send a written decision granting or denying the waiver within 60 days of the applicant's request for a waiver.
The bottom line, then, is if you are seeking an expungement only because you are interested in a TWIC card, then you might be better off trying to get a waiver first. If the waiver is granted, you will be spared the costs and delay of seeking an expungement.