Based on this inadmissibility, U.S. immigration authorities may deny their applications for visas or to adjust status. A waiver of inadmissibility may be available, depending on the charges raised against the applicant and the type of visa for which they are applying. Most waivers are adjudicated by DHS and DOS based on loose discretionary standards with a wide berth of judgment left to the examining officer. Therefore, preparing a compelling waiver brief with supporting evidence, and knowing how to most effectively present this to U.S. immigration authorities, can be absolutely critical to the waiver's success. Other factors that might affect the chances for a waiver's success include the nature and seriousness of the violation, the amount of time that has elapsed since the violation, the applicant's family and business ties to the United States, and any U.S. interests that would be positively affected by the applicant's admission.
Grounds of Inadmissibility
Grounds of inadmissibility that may be raised against an applicant by U.S. immigration authorities include: Health-Related, Criminal, Fraud/Misrepresentation, and Unlawful Presence.
Health-Related (HIV / Substance Use) Grounds
Applicants may be declared inadmissible for several health-related reasons, either because they are a carrier of a disease of public health significance, lack required vaccinations, have a physical or mental disorder that poses a threat to themselves or others, or are deemed to be a drug abuser or addict. These issues often arise as part of required medical examinations that occur prior to a visa interview, and are reported in the doctor's findings to U.S. immigration authorities. Applicants who have been arrested or convicted for an alcohol- or drug-related offense may be referred back to visit a doctor for further questioning after the visa interview.
Health-Related (HIV / Substance Use) Grounds - Continued
These grounds of inadmissibility also exclude persons who are HIV-positive from obtaining U.S. immigration benefits without special permission.
All health-related grounds of inadmissibility may be waived in the context of non-immigrant visas and most may be waived for immigrant visas. However, persons deemed to be drug abusers or addicts are ineligible to receive immigrant visas or adjust status in the United States.
Any applicant who has been arrested or convicted for any offense (other than minor traffic violations) must be prepared to disclose these facts and produce original court documents as part of their U.S. immigration application. Typical offenses that can complicate visa processing are crimes involving fraud or deceit, crimes against persons or property and drug-related offenses, although many other offenses may be problematic also. Applicants with multiple criminal offenses may also face additional problems. Applicants who have been arrested or convicted for an alcohol- or drug-related offense may even be referred to a doctor for further questioning after the visa interview to screen for health-related inadmissibility.
If you are a non-citizen and are currently facing criminal charges in state or federal court, you should consult with an immigration attorney before taking any action in your criminal case. Any plea of guilty or no contest, or even a suspended sentence or a
Criminal Grounds - Continued
deferred entry of judgment, could result in negative U.S. immigration consequences. The collaboration of an immigration attorney with your criminal defense attorney can help you make an informed decision about your criminal case, and may be instrumental in finding an alternative or lesser charge that minimizes U.S. immigration consequences.
Fraud / Misrepresentation Grounds
Any applicant who has obtained (or sought to obtain) an immigration benefit or admission to the United States through fraud or misrepresentation may be declared inadmissible. Lying to immigration or border officials, presenting false documents, or even failing to disclose certain information on an immigration application form can trigger inadmissibility. Applicants who have made false claims to U.S. citizenship or who have been prosecuted for document fraud under the INA will also face similar problems.
Waivers are available to overcome most fraud-based inadmissibility charges in non-immigrant and immigrant visa applications. In some cases where government allegations of fraud are unsubstantiated or clearly erroneous, it may even be possible to challenge these allegations as part of, or in addition to, a waiver application. Applicants for adjustment of status or immigrant visas must have a U.S. citizen or lawful permanent resident spouse or parent to qualify for a waiver.
Unlawful Presence Grounds
Most applicants who have been present in the United States for more than 180 days after the expiration of their valid immigration status (or after entering unlawfully) may be declared inadmissible.
Waivers are generally available for unlawful presence inadmissibility, but not to individuals who enter or attempt to re-enter the United States illegally after being unlawfully present for one year or more. In the context of adjustment of status or immigrant visas, unlawful presence waivers are only eligible to applicants who have a U.S. citizen or lawful permanent resident spouse or parent.
It is also important to note that departing the United States after being unlawfully present will trigger a bar to re-entry if a waiver application is not granted. If the period of unlawful presence prior to departure was between 180 days and one year, a three-year bar to re-entry will be imposed. If the period of unlawful presence was greater than one year, a 10-year bar will be triggered.
Unlawful Presence Grounds - Continued
These consequences are especially critical to consider in cases where the applicant must depart the United States to apply for a visa and a waiver.
Any applicant who has been ordered removed from the United States--either by an expedited removal order by U.S. Customs and Border Protection or a deportation order by a U.S. Immigration Judge--will be declared inadmissible for a fixed period of time. After an expedited removal order, inadmissibility will follow for five years after departure; after a deportation order, 10 years; and after any second or subsequent order of any kind, 20 years.
Waivers are available to overcome inadmissibility based on a prior removal. However, it is important to note that other grounds of inadmissibility also typically apply to these cases because without prior violations, there may not have been a prior order of removal. It is important to keep this in mind, as the cumulative effect of other violations may render the applicant ineligible for a waiver, or may reduce the chances of a waiver's success.
An applicant may also be declared inadmissible based on other diverse grounds such as lack of a proper U.S. visa or participation in alien smuggling, or a U.S. immigration officer's belief that the applicant will not be able to support themselves financially in the United States, they have supported or are a member of a terrorist organization, they have participated in drug trafficking, or other reasons.
If you have been declared inadmissible to the United States and need assessment of your opportunities to obtain a waiver, please contact me for a fact-specific review of your case.
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