Inadmissibility and Immigrant / Nonimmigrant Waivers03 Jul 2023
A foreign national may become subject to inadmissibility for a variety of reasons. Those deemed inadmissible are not eligible for immigrant or nonimmigrant visas, admission to the United States, extension of nonimmigrant status, or adjustment of status to that of a lawful permanent resident (LPR). There may be several types of nonimmigrant and immigrant waivers available, depending on the reason for inadmissibility. Depending on the specific ground of inadmissibility, the foreign national may be subject to bars of varying lengths, including a permanent bar. An individual may choose to wait abroad for the duration of the bar, if applicable. Most commonly, a foreign national may apply for a waiver at the U.S. consulate or embassy abroad when applying for a nonimmigrant (temporary) visa, or through an application filed with the U.S. Citizenship and Immigration Services (USCIS) for an immigrant waiver on Form I-601 in connection with applying for an immigrant visa or adjustment of status to an LPR.
Common Grounds of Inadmissibility
The Immigration and Nationality Act (INA) describes all possible grounds of inadmissibility, including most common ones, such as based on fraud / misrepresentation, certain criminal records, specific periods of unlawful presence in the United States and subsequent departure, health-related grounds, alien smuggling, etc.
Fraud / Willful Misrepresentation
The terms “fraud” and “willful misrepresentation” have distinct definitions, but they share common elements. An inadmissibility finding based on willful misrepresentation requires evidence of obtaining or seeking to obtain a benefit under U.S. immigration law made to a U.S. government official based on a false representation, which is both willful and material.
As with misrepresentation, a finding of fraud requires evidence of false representation of a material fact. However, it also requires evidence of intent to deceive the other party (i.e., the government official), which causes the government official to believe and act upon the false representation by granting the benefit (e.g., a consular officer issuing a visa based on a nonexistent fact provided on the visa application by the applicant with intent to deceive).
Because willful misrepresentation is somewhat easier to establish than fraud, and a finding of either one makes a foreign national permanently inadmissible, the government makes a finding of willful misrepresentation more often than a finding of fraud.
The INA describes different categories of offenses that form a basis for a finding of inadmissibility. The most common categories include crimes involving moral turpitude (CIMT), domestic violence, controlled substance offenses, prostitution, etc. The law provides for important exceptions and possible waivers available, however, this area of the law is fairly complex and requires specific legal analysis to determine whether a particular offense under state, federal, or foreign law may fall under one or more of the categories that would make one subject to inadmissibility.
Generally, a conviction for one of these categories of criminal offense, or for multiple offenses, determined to result in inadmissibility, would make one subject to lifetime inadmissibility, which may or not be waived.
A departure from the United States typically will trigger a three-year bar after a period of unlawful presence (i.e., overstay) of 180 days or more, while a departure following a year or more of unlawful presence will result in a 10-year inadmissibility bar. There are some exceptions to the inadmissibility ground due to unlawful presence. For instance, minor children do not accrue unlawful presence until they turn 18. Unlawful presence is also tolled for the duration of a timely-filed application for change / extension of status or adjustment of status to LPR.
Health Related Grounds
Health related grounds of inadmissibility include some communicable diseases, lack of required vaccinations, mental or physical disorders such as drug or alcohol dependency, etc. These grounds of inadmissibility are often, but not exclusively, discovered when an individual submits to a medical exam required for processing an application for a specific immigration benefit.
Some health-related inadmissibility grounds make the applicant subject to a temporary bar that is lifted based on the evidence of compliance with specific requirements (e.g., vaccinations), or may be waived upon a showing of specific eligibility requirements.
While the term “alien smuggling” sounds insidious, some individuals may find themselves in violation in some relatively common scenarios. A foreign national who is perceived to “encourage” or “assist” another foreign national, including family members, to enter the United States “in violation of law,” can be found inadmissible. This may result in a permanent bar that is usually not subject to a waiver, with limited exceptions.
Nonimmigrant Waivers at the Consulate
To overcome an actual or anticipated finding of inadmissibility when applying for a nonimmigrant visa at the U.S. consulate or embassy abroad, those affected may apply for a waiver along with making an application for a visa. This type of a waiver is described in section 212(d)(3) of the INA, and is commonly referred to as a 212(d)(3) waiver, as discussed in the MurthyDotCom NewsBrief, Nonimmigrant Visa Waivers – Process and Criteria (05.Jul2022). If the consular officer makes a favorable recommendation for the waiver application to be approved, it is transmitted to the Admissibility Review Office (ARO) within U.S. Customs and Border Protection (CBP), which will make the final decision (approval or denial) regarding the waiver. If the waiver is approved, the applicant will receive a visa stamp with a notation of the 212(d)(3) waiver approval. This type of waiver does not require submission of a specific form or a filing fee, and, if approved, generally is issued for a limited duration – therefore, the applicant would need to apply for a new waiver during a trip abroad after its expiration.
It should be noted that most, but not all, inadmissibility grounds are subject to a 212(d)(3) waiver. However, there may still be some inadmissibility grounds that cannot be waived for the purposes of temporary travel to the U.S. Therefore, it is recommended that the applicant seek competent legal advice prior to taking any action.
Immigrant Waivers Filed with USCIS
Those intending to apply for an immigrant visa or adjustment of status toLPR would need to apply to the USCIS using forms I-601 or I-601A, with an applicable filing fee. This type of waiver requires a showing of extreme hardship, as covered in the MurthyDotCom NewsBrief, Extreme Hardship Criteria for Form I-601 Waivers (17.Oct.2022), to a qualifying relative (LPR or U.S. citizen) who is a spouse, parent, or child of the applicant. Depending on the basis for inadmissibility, children of applicants may be excluded from a group of qualifying relatives.
While this article does not address every ground of inadmissibility in detail, it is meant to provide an overview of the most common types of inadmissibility findings and the nonimmigrant / immigrant waiver application process. It is advisable that those faced with a specific inadmissibility issue consult with an experienced immigration attorney to discuss any applicable options to resolve it.
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