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Ineligibilities and Waivers

 
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Updated: October 28, 2014

The US Immigration and Nationality Act (INA) specifies numerous grounds on which a consular officer can find an applicant ineligible for a visa and inadmissible to the United States. Regulations of the Department of State (DOS) require that all visa refusals must be reviewed by consular supervisors who can assume responsibility and re-adjudicate the case, but it is fair to say that the vast majority of initial refusal decisions are upheld upon review. With very limited exceptions, there is no judicial review of the refusal of a visa by a consular officer and determinations of fact are not subject to review.  However, a party may request an advisory opinion from DOS on any issue of law.

Waivers of ineligibility are available for almost all nonimmigrant visa applicants, and for immigrant visa applicants in certain limited circumstances. Waivers are not available for most security grounds of ineligibility nor for an alien convicted of or who has admitted committing acts that constitute (a) murder or (b) criminal acts involving torture or (c) an attempt or conspiracy to commit murder or a criminal act involving torture. Before an applicant can obtain a waiver for a nonimmigrant visa, the reviewing consular officer, or the Secretary of State, must recommend a waiver to the Department of Homeland Security (DHS) which has ultimate authority to grant or deny the waiver. If a waiver is available for an immigrant visa applicant, the consular officer’s recommendation is not required and the decision is made by DHS.

This article offers a brief summary of the more common grounds for visa denials, for suspending visa processing pending receipt of further information, and a discussion of waivers of various grounds of ineligibility. It is not a substitute for legal advice which must be tailored to each individual's particular circumstances

Section 214(b)

This section of the INA applies only to nonimmigrant visa applicants and states that every person applying for a nonimmigrant visa, with the exception of H-1, L and V visas, will be presumed to be an immigrant until he establishes to the satisfaction of a consular officer when applying for a visa (and the immigration officer when applying for admission to the US) that he is entitled to nonimmigrant status.  The INA squarely places the burden of proof upon the visa applicant.  The applicant must also convince the interviewing consular officer that his intended activities in the United States are consistent with the nonimmigrant status sought.   If this is demonstrated to the consular officer’s satisfaction, the visa will be approved if the applicant is otherwise eligible--that is, if no ground of ineligibility exists, particularly under INA section 212(a), referred to below.  An applicant denied a visa under 214(b) may not apply for a waiver of ineligibility.  For additional information regarding this ineligibility please see our website article A 214(b) Denial:  What It Means, What You Can Do.

Section 221(g)

This section of the INA, as currently interpreted, means that applicants who have not provided sufficient information or who have not fulfilled the documentary requirements of the nonimmigrant or immigrant visa category being sought will have action on their case suspended until such time as they can satisfy a consular officer that they have properly met the requirements for the visa. A waiver is not available for an applicant found ineligible under section 221(g).

Section 212

Section 212 lists those classes of aliens who are ineligible to receive visas and ineligible for admission to the US, and the classes of aliens who may apply for waivers of ineligibility.

This article will describe only the most common grounds of ineligibility under section 212(a) of the INA.  It does not enumerate all grounds of ineligibility set forth in the law.

  1. Health-Related Grounds:

  2. Among those persons excludable for health reasons are
  1. Aliens afflicted with a communicable disease of public health significance;
  2. Aliens who are determined to have a physical or mental disorder and behaviour associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, as well as those aliens who have had such a disorder and associated behaviour which behaviour is likely to recur or lead to other harmful behaviour; and
  3. Drug abusers and addicts.
  1. Criminal and Related Grounds:

  2. Excludable on criminal and related grounds are the following:
  1. Aliens convicted of, and those who admit having committed either
    1. A crime involving moral turpitude (or an attempt or conspiracy to commit such a crime), or
    2. A violation of (or a conspiracy or attempt to violate) any law or regulation relating to a controlled substance.
      For information on the meaning of “moral turpitude” please see our website article A Crime Involving Moral Turpitude! What in the World is That?

    3. Exceptions: an alien will not be ineligible for a visa if the alien committed only one crime involving moral turpitude and if
      1. the crime was committed when the alien was under the age of 18 and the crime was committed (and the alien was released from any confinement imposed for the crime) more than 5 years before the date of application for a visa or admission to the U.S., or
      2. the maximum penalty possible for the crime did not exceed imprisonment for 1 year, and if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months.
  2. Aliens convicted of two or more offences who are sentenced to confinement of 5 years or more;
  3. Controlled substance traffickers;
  4. Prostitutes and procurers of prostitutes, and aliens coming to engage in any other unlawful commercialised vice;
  5. Aliens engaged in trafficking in persons; and
  6. Aliens engaged in money laundering.
  1. Terrorist Activities:

  2. Ineligible for visas on grounds of terrorist activities are, among others,
  1. Aliens who have engaged in a terrorist activity or for whom there is a reasonable ground to believe are engaged or are likely to engage after entry in any terrorist activity;
  2. Aliens who are representatives of either a terrorist organisation or of a political, social or other group that endorses or espouses terrorist activity;
  3. Aliens who are members of a terrorist organisation; and
  4. The spouse and child of any alien inadmissible under this section if the activity causing the alien to be found inadmissible occurred within the last 5 years.
  1. Security and Foreign Policy Grounds:

  2. An alien is ineligible for a visa if a consular officer or the Attorney General knows, or has reasonable grounds to believe, the alien seeks to enter to engage solely, principally, or incidentally in any unlawful activity, of if the Secretary of State has reasonable grounds to believe that his entry or proposed activities in the United States would have potentially serious adverse foreign policy consequences for the United States.
  1. Public Charge Grounds:

  2. An alien who is likely at any time to become a public charge is ineligible for a visa to the United States.
  1. Misrepresentation Grounds:

  2. Any alien who, by fraud or wilfully misrepresenting a material fact, seeks to procure (or has sought to procure, or has procured) a visa, other documentation, or admission into the US, or any other benefit provided under the Immigration Act, is ineligible for a visa. This includes any alien who falsely represents, or who has falsely represented, himself to be a US citizen.
  1. Stowaways and Alien Smugglers:

  2. Ineligible for visa are those aliens who are stowaways, or who at any time knowingly have encouraged, induced, assisted, abetted or aided any other alien to enter or try to enter the ­­US in violation of law.
  1. Aliens Previously Removed and Aliens Unlawfully Present:

  2. The following are some of those ineligible for visas under subsection 212(a)(9)of the INA:
    1. Aliens previously ordered removed from the US and who seek admission
      1. within 5 years of the date of such removal, or
      2. within 10 years in certain other cases, or
      3. within 20 years in the case of a second or subsequent removal or in the case of an alien convicted of an “aggravated felony.”
    2. Aliens unlawfully present in the U.S. for a period of more than 180 days but less than 1 year and who seek admission within 3 years of the date of departure or removal;  and
    3. Aliens unlawfully present for one year or more who seek admission within 10 years of the date of departure or removal from the US.
  1. Miscellaneous Grounds:

  2. Amongst the aliens rendered ineligible for visas by various miscellaneous provisions of the INA are practicing polygamists, any immigrant who is permanently ineligible for citizenship, international child abductors, unlawful voters, and former US citizens who renounced citizenship to avoid taxation.

Waivers of Ineligibility

  1. Nonimmigrant Visas:

  2. The INA provides for waivers of ineligibility for visas and inadmissibility to the US for most nonimmigrant visa classifications. The statute confers upon consular officers and the Secretary of State the important discretionary function of recommending waivers of ineligibility to DHS which has sole authority for granting or denying waivers. If a waiver is not recommended to DHS, a waiver may not be granted and the nonimmigrant visa sought may not be issued.

    In deciding whether or not to recommend a waiver, consular officers are instructed to consider the following factors, amongst others;
    1. The recency and seriousness of the activity or condition resulting in the alien’s inadmissibility;
    2. The reasons for the proposed travel to the US; and
    3. Any effect, positive or negative, of the planned travel on US public interests.

  3. Immigrant Visas:

  4. Waivers for immigrant visas are limited to certain grounds of ineligibility and are often available only if the ineligible alien has a qualifying US citizen or lawful permanent resident relative. A waiver may be granted by DHS, without the requirement of a recommendation by a consular officer or the Secretary of State, for the following grounds:

    1. Health-Related Grounds:

    2. A waiver of inadmissibility may be granted to an alien determined ineligible for a visa and inadmissible to the U.S. if found to have a communicable disease of public health significance, if the alien is the spouse, unmarried son or daughter or the minor unmarried lawfully adopted child of a US citizen, lawful permanent resident, or a person issued an immigrant visa. A waiver for an immigrant visa is available in certain limited circumstances for aliens found ineligible for having, or for having had, a physical or mental disorder and associated harmful behaviour. A waiver for an immigrant visa is not available for drug users and addicts.

    3. Criminal and Related Grounds:

    4. Waivers are available to aliens otherwise ineligible by reason of criminal and related grounds, as follows:
      1. Aliens convicted of, or who admit the essential elements of, crimes of moral turpitude (except for murder or criminal acts involving  torture and attempts or conspiracy to commit either);
      2. Aliens ineligible due to the commission of more than one crime;
      3. Aliens ineligible for prostitution; and
      4. Aliens convicted of a single offence of simple possession of 30 grams or less of marijuana.

    A waiver is available only if

    1. the alien is the spouse, parent, son, or daughter of a US citizen or lawful permanent resident and denial of an immigrant visa and admission to the US would result in extreme hardship to the US citizen or lawful permanent resident spouse, parent, son, or daughter of the alien; or
    2. the activities for which the alien is inadmissible occurred more than 15 years before the date of the application for a visa, admission to the US or adjustment of status, and the alien’s admission would not be contrary to the national welfare, safety, or security of the US, and the alien has been rehabilitated.
    1. Misrepresentation Grounds:

    2. Waivers are also available for those determined ineligible for having wilfully misrepresented a material fact to procure a visa, admission to the US, or any other immigration benefit, but only if the person is the spouse, son or daughter of a US citizen or of a lawful permanent resident AND only if the person can establish extreme hardship to the US citizen or lawful permanent resident spouse or parent.

Conclusion

Determinations of ineligibility for visas and inadmissibility to the US, and the availability of waivers for the numerous grounds of inadmissibility, are certainly amongst the more complex areas of US immigration laws. Readers who believe that they may have an issue in this area should take advice from competent US immigration counsel before applying for a visa or admission to the United States.

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