Waivers of Inadmissibility

Many foreign nationals are barred from receiving legal status in the U.S. because they are determined to be “inadmissible.” Inadmissibility is a legal term meaning that the applicant will not be allowed to physically enter the U.S. if abroad, or, if they are already in the U.S., to adjust their status to that of a legal permanent resident.

Grounds for Inadmissibility

1) Past violation(s) of U.S. immigration law or unlawful presence laws is the most common reason for inadmissibility. If you have been previously removed or deported from the U.S., tried to enter the U.S. and been caught at the border, entered the U.S. without inspection, or overstayed your valid immigration status for 180 days or more, you are inadmissible.  There are many different ways a foreign national can be deemed inadmissible due to these grounds, so if you have any prior violations of immigration law (even if you have never been “caught”), it is extremely important to contact an immigration attorney prior to applying for legal status in the U.S.

2)  Criminal Grounds. If an individual has a criminal history, they may be inadmissible.  Offenses considered “crimes involving moral turpitude (CIMT)” can make a person inadmissible, and so can most offenses involving controlled substances.  Not all convictions make a person inadmissible, and the analysis of whether or not a certain offense will become a problem can be quite complicated. If you have a criminal history of any kind, it is advisable to contact an experienced immigration attorney prior to applying for any kind of U.S. immigration benefit.

3) Health Related Grounds, such as having a communicable disease of public health significance, failing to present documentation of vaccinations against vaccine-preventable diseases (including mumps, measles, rubella, polio, tetanus, diphtheria, hepatitis B, and others), or having a physical or mental disorder that results in behavior that may pose a threat to the community.  The “physical or mental disorder” element of this ground can be a problem for many people. For instance, if you have even a single DUI conviction on your record, or have ever made a statement to a government official that could lead them to believe you are or were a drug user (even if you have no drug-related criminal convictions), your application could be flagged for having the “disorder” of being an alcoholic or drug addict. Often, individuals attempting to enter the U.S. on a visa are required to undergo testing by a U.S.-government approved doctor before their visa will be issued due to this health-related ground. If you are concerned that this ground may apply to you, it would be wise to contact an immigration attorney to advise you during the visa/adjustment of status process.

4) Economic Grounds, meaning that a person is considered “likely to become a public charge.” This applies to individual who the government deems likely to seek access to public benefits such as welfare, food stamps, Medicaid, etc. if they are admitted to the U.S.  Individuals applying for admission or adjustment of status as a legal permanent resident are required to submit an “affidavit of support” along with their application to address this ground. The affidavit of support provides proof to the government that the person petitioning for you (or that person and a co-sponsor) are capable of providing for you financially should you be unable to do so yourself.

5) Fraud or Willful Misrepresentation of a Material Fact in connection with seeking to procure or procuring a visa or any other type of immigration benefit can render a person inadmissible. This includes making an oral misrepresentation to an immigration official, presenting a fraudulent document in an immigration application, or any other form of misrepresentation of the truth while attempting to gain entry or legal status in the U.S.

6) Moral grounds, including persons coming to the U.S. planning to practice polygamy.

7) False Claim of U.S. Citizenship. Claiming to be a U.S. citizen when you are not is one of the most serious and difficult-to-overcome grounds of inadmissibility.  One way an individual can subject themselves to this ground is by voting in a state, federal, or local election where U.S. citizenship is required.

8)  Security Related Grounds, including espionage, sabotage, illegal activity, terrorist activity, association with terrorist organizations, membership in a totalitarian party (including the communist party), Nazis, persons committing genocide or torture, religious persecutors, etc.  This is one of the most serious grounds of inadmissibility, but is rare in its application.

What options do I have if I’m inadmissible?

In many cases, inadmissible individuals may apply for waivers of these grounds of inadmissibility. The requirements and eligibility for a waiver will vary depending upon which ground of inadmissibility applies.  The forms for the waivers are extremely fact-specific to each case, and an attorney should be consulted before a family makes a decision on whether or not a waiver should be sought.

The most common types of waivers are as follows:

Ground of Inadmissibility Type of Waiver
Health-Related Grounds (like having a communicable disease of public health significance) INA 212(d)(3)(A) & INA 212(g)
Physical or mental disorder that may pose a threat to the community 212(d)(3)(A) & INA 212(g)(3)
Drug Abuser or Addict, one who has engaged in “non-medical use of a controlled substance.” 212(d)(3)(A) (Only available to “non-immigrants,” or those who do not wish to remain in the U.S. permanently. There is no waiver of this ground for individuals wishing to enter the U.S. as Legal Permanent Residents.)
Commission of a “Crime of Moral Turpitude” INA 212(d)(3)(A) (for non-immigrants) & INA 212(h) for those seeking permanent residence. Note that if the crime occurred within the past 15 years, applicants for INA 212(h) must prove that a U.S. Citizen or Legal Permanent Resident family member will suffer “extreme & unusual hardship” if the waiver is denied.
Controlled Substance Violators INA 212(d)(3)(A) is available to some non-immigrants. For those wishing to establish residency in the U.S., a waiver exists under INA 212(h), but only if the violation related to a single offense of simple possession of 30 grams or less of marijuana.
Multiple Criminal Convictions INA 212(d)(3)(A) waiver is available to some non-immigrants. For intending immigrants, an INA 212(h) waiver may be available, depending on the applicant’s criminal record. Like the Crime of Moral Turpitude waiver, if the crime occurred in the past 15 years the applicant must also prove that a U.S. Citizen or Legal Permanent Resident family member will suffer “extreme & unusual hardship” if the waiver is denied.
Controlled Substance Traffickers and the Spouse, Son, or Daughter of Substance Traffickers Who Obtained Financial or other Benefit and Knew or have Known that the Financial Benefit was the Product of Illicit Activity within the Past Five Years In rare cases, an INA 212(d)(3)(A) waiver may be available to non-immigrants. NO waiver is available to those applying for admission as immigrants.

 

[Visa Inadmissibility FAQs]