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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 SE 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 SE 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, even with treatment, remains a communicable disease
and, a waiver must be obtained before a visa may be issued.
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.
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) 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. |