I was sitting reviewing a crazy and (inexplicable) RFE from the USCIS regarding an I-601 waiver. In case you don’t know, an RFE is a Request for More Evidence. Nowadays I and many other immigration attorneys are getting these more often than we would like. This RFE was from a previous I-601 waiver that I filed previously. The baffling part of this RFE was they were requesting everything we had already provided. Any way- stepping off my soap box. Back to the point – as I reviewed the RFE, I thought about this blog article. Many people don’t even know what the heck an I-601 waiver is until they are staring the officer in the face as the officer explains they are inadmissible and need to apply for one. That sucks! So I want to give you as much of a heads up. So here it is…
Do you know if you are admissible to enter the United States? This seems like a simple question right? Well I’m going to surprise you. Many people find out that they are inadmissible very late in the application process. Here is what happens more often than it should.
The beneficiary or applicant goes to the embassy or USCIS office for their final interview. The officer reviews their application their file. At this point the officer will find something like a criminal history, or past immigration violation. The applicant may not realize how serious either is. They may think, “it’s expunged” or “surely a misdemeanor or little overstay of a past visitor’s visa won’t be a problem.” However, all of these can mean you could be barred from entering the U.S. So here is a summary of factors that may cause a denial in your visa application.
Grounds of Inadmissibility
Below is an extensive list of the reasons for a denial due to an inadmissibility and how to overcome the inadmissibility (if possible).
Inadmissibility due to Health Related Grounds
Usually at some point in the process you will do the required medical exam. The purpose of the medical exam is to make sure you do not have a disease that will be detrimental to the U.S. public upon entry. Such diseases are referred to as communicable diseases of public health significance and include:
- granuloma inguinale
- infectious leprosy
- lymphogranuloma venereum
- infectious syphilis; and
- active tuberculosis
Other health related inadmissibility are:
- failure to have all required vaccinations
- to have a physical or mental disorder that is associated with harmful behavior to other persons or property; or
- to be a drug abuser or addict of controlled substances listed under Section 202 of the Controlled Substances Act.
These conditions are usually detected in the required medical exam. The physician will include it in the report. The immigration officer will determine admissibility and whether a waiver is available based on the health related condition.
Inadmissibility due to Criminal Grounds
This is a broad category. An applicant should carefully assess the facts in their criminal history to determine whether it will make them inadmissible to enter the United States. These are the main categories of criminal reasons for inadmissibility.
- Crimes involving “moral turpitude.” This is a hard term to define and an even harder term to explain to my clients. This is basically the catch all for criminal conduct. Rather it is the miscellaneous criminal category. Hence, the reason it is both vague and broad. Moral turpitude has been defined in case law as an act that is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” What does this mean? It’s so subjective right? This is one good reason you should definitely get an attorney to help you determine whether past criminal conduct fall under this definition. This is usually determined on a case by case basis. Therefore, even a misdemeanor conviction can lead to the finding of inadmissibility on the basis of moral turpitude.
- Violation of any controlled substance law. This is another very broad area. Therefore, any arrest and conviction of a controlled substances law in any country should be evaluated carefully to determine whether it will lead to a finding of inadmissibility. It likely will. The next step would be to determine whether a waiver is available.
- Multiple Criminal Convictions. A conviction of two or more crimes will lead to a finding of inadmissibility if the sentence was five or more total years in prison (counting the sentences in the aggregate). The multiple convictions can come from a single scheme or conduct and can be found to be a crime of moral turpitude at the same time.
- Drug trafficking. This is very difficult to overcome because the immigration officer can either know or have reason to believe that a person has been involved in trafficking in controlled substances, to find that person to be inadmissible to the United States. Such conduct of the person’s part includes aiding, abetting, conspiring, or colluding with others in the illicit drug trafficking. It is important to determine whether this truly applies because there is no waiver available for drug traffickers.
- Prostitution. It’s no surprise that prostitution is on the list. If there is evidence that someone is coming to the United States to take up prostitution as an occupation or if any person coming to the United States has engaged in prostitution within ten years of his or her application for a visa, adjustment of status, or entry into the United States, that person will be inadmissible. This section applies to anyone who has profited from the business of prostitution as well, such as pimps.
- Commercialized Vice. This is related to the business of prostitution and includes recruiting customers for prostitution or facilitation the business of prostitution through management, or providing a place for this to happen. Therefore, any person coming to the United States to engage in any unlawful commercialized vice is inadmissible.
- Commission of a serious crime in the United States where a person has asserted immunity from prosecution. If a person commits a serious crime, is granted immunity and then skips the court proceedings in the case by leaving the United States, that person will be found to be inadmissible.
- Violations of Religious Freedom. If a person served as a foreign government official severely oppressed the religious freedom of others, then that person is inadmissible.
- Human Trafficking. Any commission, conspiring, aiding, abetting or collusion to commit human trafficking (whether in or outside of the United States) is inadmissible.
- Money Laundering. A person seeking to enter the United States to money launder is inadmissible.
Inadmissibility due to National Security Grounds
A person is inadmissible if a Department of State consular officer, DHS immigration officer, or DOJ immigration judge, “knows or has reasonable ground to believe” that the non-citizen seeks to enter the United States to engage in:
- espionage or sabotage, to attempt to overthrow the U.S. government, or to engage in any unlawful activity;
- has participated in any terrorist activities or has any association with terrorist organizations, governments or individuals;
- presents a threat to foreign policy or has membership in any totalitarian party that person may be inadmissible; or
- has participated in Nazi persecutions or genocide is inadmissible.
Inadmissibility due to likelihood of becoming a public charge
If a person is likely to depend on the government for support of their basic needs, then they are also likely to become a public charge. Such support may include cash benefits and food stamps. The officer will look at certain factors to determine whether a person is likely to become a public charge. Such factors include: health, family status, age, assets, employment history, and education. This is where the Affidavit of Support plays a role in an immigration immigrant application. The Affidavit of Support helps the petitioner show they have enough income to support the applicant. Hence, they will not become a public charge.
Inadmissibility due to lack of labor certification
For employment based immigrant visas, it is very important to get the labor certification from the Department of Labor which certifies that the employment to the immigrant:
- Will not adversely affect the wages and working conditions of U.S. workers similarly employed; and
- Take jobs away from U.S. persons who are willing and able to work in the position.
Without this certification, then the immigrant applying for employment based visa will be inadmissible.
Inadmissibility due to fraud or misrepresentation
If a person tries to get a U.S. visa or seek entry into the U.S. by fraud or willfully misrepresenting a material fact, then that person is inadmissible. Such acts include entering with a fake passport, or telling a lie.
Inadmissibility due to prior removals and/or unlawful presence
Individuals will be barred from returning to the United States because:
- they have been in the United States unlawfully (undocumented) for a period in excess of 180 days, during a single stay, and then departed the United States. Or for a total of one year during a single or multiple stays and then illegally re-entered the U.S. Illegal entry is entering the U.S. without inspection.
- they have been deported or self-deported from the United States while a final order of removal was outstanding.
Miscellaneous grounds of inadmissibility
Other grounds of inadmissibility include:
- Persons who entered the country illegally (without being inspected and admitted or paroled)
- Persons who failed to attend immigration and/or removal hearings
- Student visa abusers
- Former U.S. citizens who renounced citizenship to avoid taxation
- Practicing polygamists
- Unlawful voters
- International child abductors and relatives of such abductors
So Now if You are inadmissible, What’s the Solution?
The next question is: Is there a waiver available to overcome your inadmissibility? After a denial on the basis of an inadmissibility, the officer will inform the applicant whether they are eligible for a waiver. Not all of the above inadmissibilities have the solution of a waiver. If applying for an immigrant visa, then the likely waivers are the I-601 waiver and the I-601A Provisional Waiver for unlawful presence (only if in the United States).
Waivers are available to some individuals such as:
- An applicant who is outside the United States who has had a visa interview with a consular officer and was found inadmissible.
- An applicant for adjustment of status
- K-1 or K-2 nonimmigrant visa applicant
- K-3 or K-4 nonimmigrant visa applicant
- V nonimmigrant visa applicant
- Temporary Protected Status (TPS) applicant
- Nicaraguan Adjustment and Central American Relief Act (NACARA) applicant
- Haitian Refugee Immigrant Fairness Act (HRIFA) applicant
- Violence Against Women Act (VAWA) self-petitioner
- T nonimmigrant visa holder filing for adjustment of status who is inadmissible by reason of a ground that has not already been waived in connection with the T nonimmigrant status
Waivers are available for the following inadmissibilities:
- Health-related grounds
- Some criminal grounds
- Immigrant Membership in the Totalitarian Party
- Immigration fraud or misrepresentation, excluding false claims to U.S. citizens
- Smugglers and being subject of civil penalty
- The 3-year or 10-year bar for being unlawfully present in the United States
- Certain grounds of inadmissibility, if filed by an applicant for TPS
- Aliens previously removed and unlawfully present after previous immigration violations, if filed by a NACARA or HRIFA adjustment applicant
- Unlawfully present after previous immigration violations, if filed by a VAWA self-petitioner