About Inadmissibility to the United States

Denied entry? Seek a waiver.

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"Give me your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me, I lift my lamp beside the golden door!"

Notwithstanding the invitation of the Statue of Liberty, not everyone is welcome to the United States.

Entertainment personalities like Russell Brand, Lilly Allen, Amy Winehouse, and Boy George have had highly publicized difficulties with US immigration law, but countless others have had problems of their own, even if it didn’t make tabloid headlines. Anyone with a criminal record may be subject to heightened scrutiny for a US visa—or outright denied, even if a conviction is spent. And, it doesn’t go away; every time someone with a criminal record seeks a visa they must overcome the inadmissibility. In effect, with all due respect to Russell, a criminal record can leave one branded as inadmissible to the United States.

Section 212 of the US Immigration and Nationality Act (INA) describes various grounds for denying entry to the United States, from health-related protections to criminal and security-related provisions, as well as more administrative concerns relating to punishing those with a history of abusing US immigration laws or misrepresenting themselves to US officials.

Waivers

An inadmissibility finding is not necessarily insurmountable.  Waivers are available to both immigrants and nonimmigrants.  The requirements vary depending on the visa sought and the inadmissibility to be overcome.  Generally, nonimmigrants need to establish some element of rehabilitation and a rationale for entering the US, and to assure US officials that they do not pose a threat to the US.  Immigrants must generally establish similar elements of rehabilitation; however, in most cases they must also establish that denial of the waiver would result in "extreme hardship" to a qualifying US citizen or LPR family member (a spouse or parent, or in some instances--but not all--children).

When waivers are required, the processing time involved in adjudicating the waiver can be significant.  Waivers for nonimmigrant visas can add several weeks to visa processing time.  Waivers for immigrant visas can take several months to adjudicate.

NEW Proposed changes to Immigrant Waivers for Overstays  On January 6, 2012 USCIS proposed modifying the process for filing requests for waivers of inadmissibility for immigrants who are subject to the 3- or 10-year ban due to overstaying their admission to the US.  This is a VERY LIMITED provision that allows such individuals the opportunity to "pre-file" the waiver application in the US, rather than wait until the visa interview; however, they must still depart the US for the visa interview and they must still establish extreme hardship.  In addition, this accommodation is only available to individuals whose inadmissibility is solely based on the 3- or 10- year bar.  Additional information is available from USCIS (see the fact sheet attachment, below).

If you have been denied a visa to the United States, or are concerned that you might be, contact us for a consultation to review your situation.

For additional information, please review the links below.

Steven D. Heller
US Immigration Lawyer in the UK

+44 (0)1273 434609

info@us-visa.co.uk

Read my article about criminal inadmissibility in the Solicitors Journal (See attachments, below)		Read my article about discretion in I-601 waivers in ILW.com Immigration Daily		To find out about inadmissibilities and nonimmigrant visa waiver requirements, visit the US Embassy (London) website.					To find about about immigrant visa waiver requirements visit the USCIS US Embassy (London) website.