WAIVERS OF LEGAL GROUNDS OF INADMISSIBILITY

The Consular Officer denied my Visa Application!

NOW WHAT ???

Under Section 212(a) of the Immigration and Nationality Act (INA), various past conduct on the part of the alien visa applicant may render them inadmissible to the United States. Although there are a large number of potential grounds of inadmissibility under INA 212(a), the following are the most common legal grounds of inadmissibility which are encountered in cases in Asia. The following are in the order in which they appear in the statute, not in order of frequency actually encountered in practice.

212(A)(1) Health Related Grounds. In general, any alien who is determined to have a communicable disease of public health significance. The most common "diseases of public health significance" seen in Asia are HIV, Tuberculosis (TB), Syphilis and Gonorrhea. In general, if an applicant is identified as having TB, Syphilis or Gonorrhea, their condition can usually be treated so that it is no longer infectious, resolving the grounds of inadmissibility. HIV, previously a medical grounds of inadmissibility is no longer on the CDC list of communicable diseases of public health significance which requires denial and waiver. However, most Consular Officer continue to treat HIV + status as an "enhancement" factor for purposes of determining the public charge issue and evaluating the affidavit of support for sufficiency.

212(a)(2)(A) Criminal and Related Grounds. Conviction of one of a lengthy list of enumerated crimes. Of particular concern are "crimes involving moral turpitude" which are deemed to reflect adversely on the character of the applicant. Applicants are often distressed to discover that what they consider very minor crimes may lead to a finding of inadmissibility. For example, any crime involving theft, no matter how small the amount, is considered a "crime involving moral turpitude".

212(a)(2)(B) Multiple Criminal Convictions. Multiple criminal convictions, particularly of crimes which might not result in a finding of inadmissibility under 212(a)(2)(A) if only one conviction were involved.

212(a)(2)(C) Controlled Substance Traffickers. Obvious but, also includes the spouse, son or daughter of any such trafficker if they obtained any benefit from the illegal activity of the principal.

212(a)(2)(D) Prostitution and Commercialized Vice. Inadmissible for ten (10) years from the date of the last act of prostitution.

212(a)(6)(C) Fraud and Misrepresentation. Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

212(a)(9)(B) Prior Visa Violators (overstays). If an alien has previously been in the United States and, violated his visa, overstaying their period of lawful admission, they are inadmissible for a variable period depending on the length of overstay. In general, if the overstay is more than 180 days, the alien is inadmissible for a three (3) year period. If the overstay is more than one (1) year, the alien is inadmissible for a ten (10) year period. In case of an applicant, an I-212 application may also be required.

If one of the foregoing, or other statutory grounds of inadmissibility applies, the applicant may be eligible for a waiver of the grounds of inadmissibility. A waiver application may only be filed after a consular officer has made a determination that a specific grounds of inadmissibility applies. Waiver applications are commenced by filing of an I-601 waiver application with the USCIS overseas District Director having jurisdiction over the Consular District in which the finding of inadmissibility was made.

Congress has provided for waivers of grounds of inadmissibility but, has limited their application. In general, the waiver provisions which apply to most grounds of inadmissibility frequently encountered in a family based immigration practice require a determination that the continued denial of the alien's admission to the United States would result in "extreme hardship" to the U.S. Citizen spouse or fiancé. "Extreme hardship" is not specifically defined in the regulations. However, the key term is "extreme". The ordinary hardship that would naturally arise out of the separation of spouses is insufficient as a matter of law. Only in cases of great actual or prospective hardship to the U.S. Citizen or Permanent Resident family member will the bar to admission be removed. Extreme hardship to the alien applicant is not considered in making the waiver determination. With these qualifications in mind, we look to the following types of evidence and arguments (relating to the U.S. family member(s), not the alien applicant) in preparing and presenting an I-601 Waiver Application:

  1. Health Issues: Ongoing or special treatment requirements for a physical or mental condition; the availability and quality of such treatment in the U.S. as opposed to the alien's home country if the U.S. family member(s) had to relocate; anticipated duration of treatment; whether a condition is acute, chronic or disabling.
  2. Financial Issues: Future employability; loss due to sale of home or business or, termination of a professional practice if forced to relocate to be with alien spouse; decline in standard of living; ability to recoup short term losses; cost of extraordinary needs such as special education or training for children; cost of care for family members (i.e., elderly or infirm parents).
  3. 3. Educational issues: Loss of opportunity for higher education; lower quality or limited scope of education options; disruption of current program, requirement to be educated in a foreign language or culture with ensuing loss of time for grade; availability of special requirements, such as training programs or internships in a specific field.
  4. Personal issues: Close relatives in the United States and disruption of close family ties, separation from spouse/children/parents, ages of the parties involved, length of residence and community ties in the United States
  5. Special issues: Cultural, language, religious and ethnic obstacles; valid fears of persecution, physical harm or injury; social ostracism or stigma; impaired access to social institutions or structures.

Please note that approval of waiver applications is in the discretion of the USCIS District Director and the outcome is always uncertain as to whether the Director will exercise his/her discretion favorably in a given case. Because approval is discretionary, any appellate review is based on an "abuse of discretion" standard, an almost impossible appellate hurdle to overcome. It is therefore critical that you present the best possible case on your initial waiver application filing.

While not technically a part of the decision making criterion, we believe that it is also important that the applicant demonstrate clearly and convincingly that they are "rehabilitated" or "reformed" from whatever conduct caused the grounds of inadmissibility to apply and, that there is no danger of such conduct being repeated in the U.S. if the waiver application is granted. Your attorney will advise you on possible steps the visa applicant might take to affirmatively demonstrate rehabilitation.

Finally, for clarity sake, please note that an I-601 Waiver Application is not an appeal of the consular officer's visa denial. In an I-601 Waiver Application, the applicant specifically confesses the correctness of the officer's determination that a legal ground of inadmissibility applies and, asks that the ground of inadmissibility be waived in their case, allowing for issuance of the visa.

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