Waivers and Inadmissibility
"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 publicised 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.
Get Your Facts Straight
Be sure to obtain relevant records. If you have ever been arrested, you should obtain your ACPO police certificate. If you were tried in a court, you should obtain appropriate records (a Memorandum of Conviction in the UK). Please review the following information from the US Embassy regarding arrest records:
Police Certificates for the United Kingdom:
A visa applicant who has resided in the United Kingdom for 6 months or more since the age of 16, is required to obtain a police certificate from the ACPO Criminal Records Office (ACRO). This police certificate will serve to advise the U.S. Embassy, London whether or not any criminal conviction is held against him/her. The police certificate will be sent to the applicant's address provided at the time of application. Please note that the Immigrant Visa Unit considers the police certificate valid for 12 months from the date of issuance, not six months as stated on the certificate.
Court and Prison Records:
Persons who have been convicted of a crime must obtain a certified copy of each court record and any prison record, regardless of the fact that he or she may have subsequently benefited from an amnesty, pardon or other act of clemency or the United Kingdom Rehabilitation of Offenders Act.
Court records should include:Complete information regarding the circumstance surrounding the crime of which the applicant was convicted and the disposition of the case, including sentence or other penalty or fine imposed
Court and Prison Records for the United Kingdom:
Court Records, usually called a "Memorandum of Conviction" (MOC) in Great Britain and "Certificates of Conviction" in Northern Ireland, must be obtained from the clerk of the court(s) in which you were tried.
If you have been refused entry to the US, you should have received an I-877 record of your refusal.
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.
The following subpages discuss inadmissibilities and possible avenues for relief:
- CIMT? VWP? ESTA? OMG
- Cautionary Tales
- Drugs and Alcohol
- Can Sexual Offenders be Forgiven?
- Heller's Catch-22
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; the passage of time since the even that precipitated the inadmissibility is critical. See INA§212(d)(3) and Matter of Hranka.
Immigrants generally must 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). See INA§212(h), §212(i), and §212(a)(9)(B). Again, the passage of time can be pivotal. See especially INA§212(h)(1)(A) and §212(a)(9).
When waivers are required, the processing time involved in adjudicating the waiver can be depressing. Waivers for nonimmigrant visas can add several weeks to visa processing time. Waivers for immigrant visas can take several months to adjudicate.
To learn more about applying for a waiver based on extreme hardship, visit the sub-page: