Visas: Reasons for Ineligibility
Navigating the complexities of immigration law and U.S. visa application can be overwhelming. Applicants for U.S. visas or adjustment of status may face a few challenges. Included among these challenges a foreign national may face are grounds of inadmissibility.
Under the Immigration and Nationality Act (INA), certain foreign nationals are not allowed to get U.S. visas for various reasons. The INA outlines these reasons for visa ineligibility. The grounds apply to lawful permanent resident and nonimmigrant visa applications.
The adjudication of visa petitions or applications is a two-part process. First, the consular officer stationed in a U.S. embassy or U.S. consulate determines whether the visa applicant is eligible for the visa. This process involves thoroughly reviewing the petition and looking at relevant affidavits. Secondly, Department of Homeland Security (DHS) officers would conduct a screening upon arrival at the U.S. port of entry of the foreign national.
This article talks about the intricacies of U.S. visa issuance. The article will also shed light on the factors that could cause ineligibility for U.S. visas, removal proceedings, or deportation of a foreign national.
The Department of Health and Human Services and INA are crucial in defining the grounds for inadmissibility for public health-related concerns. The United States does not admit a foreign national who has any of the following health-related concerns:
- Foreign nationals who have a communicable disease that can quickly spread to other people. The U.S. Department of Health classifies these diseases.
- Foreign nationals who want to live in the U.S. permanently who haven't shown proof of vaccination for certain diseases. These vaccinations include those against measles, mumps, rubella, polio, tetanus, pertussis, diphtheria, influenza type B, and hepatitis B. U.S. health professionals would also recommend other vaccines. Vaccination requirements may also vary in each circumstance and per visa category.
- Foreign nationals who have a mental or physical disorder that could put them or other people in danger. This could be because these conditions would cause a threat to others, their property, or their safety.
- Foreign nationals who abuse drugs or are addicts. The Department of Health likewise decides these conditions.
Anyone who falls under this category cannot enter the United States. But some exemptions may apply. For instance, children 10 years of age or younger who are being adopted by a U.S. citizen (either by birth or naturalization) do not have to follow these vaccination rules. They only need to have their future adoptive parent assert that the adopted child will have all the vaccines within 30 days of entry into the country or as soon as possible medically.
A foreign national is ineligible for a U.S. visa if they've committed certain crimes. These include:
1. Criminal Conviction of Certain Crimes
- Foreign nationals who have been guilty of or committed crimes involving moral turpitude, which means crimes that show a lack of good moral character. These crimes include fraud or theft.
- Foreign nationals convicted of drug-related crimes.
But there are exceptions to this list. This means they can still enter the United States upon assessment by the proper immigration official. This exception includes the following:
- Foreign nationals involved in a crime involving controlled substances while they were under 18 years of age. And that crime was over five years ago.
- Foreign nationals convicted of a crime with a maximum jail time of less than one year were not sentenced to over six months in jail. This rule applies to a single offense and not multiple criminal offenses.
2. Conviction for Multiple Crimes
Foreign nationals who have been previously convicted of two or more crimes. This rule applies whether the crimes committed involve moral turpitude. And the person has received a sentence of five years of confinement or more. This rule does not apply to political crimes.
3. Trafficker of Controlled Substances
Foreign nationals with whom an immigration officer or the Attorney General believes to have been involved or are involved in drug trafficking cannot enter the United States. The same rule applies to those who are family members of a person involved in drug trafficking, and the family member received a significant benefit from the illegal activity in the past five years.
4. Prostitution and Commercialized Vice
Foreign nationals cannot enter the country if their purpose is to participate in sex work. They are also inadmissible to enter the country if they have been involved in prostitution within the past 10 years. The 10-year timeframe need not necessarily be during the entire 10-year duration. Foreign nationals are inadmissible to enter the U.S. if they are entering the country to commit illegal commercial vice. This includes activities related to business and immoral crimes, whether or not related to prostitution.
5. Noncitizens Involved in Serious Crimes Who Received Immunity from Prosecution
In some cases, the U.S. removes foreign nationals who committed criminal offenses but were not prosecuted due to diplomatic immunity. These people haven't submitted to the jurisdiction or have been held accountable for the crime. They are prohibited from re-entering the U.S.
6. Human Trafficking
Foreign nationals who committed or attempted to commit human trafficking offenses outside or inside the United States. Someone who has assisted someone else in committing human trafficking is inadmissible to enter the country. The same rule applies to family members of the foreign national who benefitted from this act in the past five years.
An exception applies to children of the foreign national who received the benefit while they were minors.
7. Money Laundering
Foreign nationals involved in money laundering who attempt to enter the country to commit this crime are inadmissible in the U.S. This rule applies to those who assisted someone in committing money laundering.
8. Security Related Concerns
A foreign national who U.S. government officials believe intends to enter the country to commit the following acts:
- Break the U.S. laws related to sabotage, spying, or exporting illegal items.
- Conduct unlawful acts.
- Do any activity that aims to oppose, control, or overthrow the U.S. government through violence, force, or other unlawful means.
- Engage in any terrorist activities or being part of a terrorist organization.
This section is listed in detail on the U.S. Citizenship and Immigration Services (USCIS) website.
9. Public Charge
If the consular officer thinks the foreign national is attempting to enter the U.S. for government support, they can also deny entry. Some of the factors that are taken into consideration are as follows:
- Family consideration
- Financial resources
- Education and skills
In addition to this, the consular officer may also take into consideration any affidavit of support.
10. Labor Certification
Foreign citizens who want to enter the U.S. for work are inadmissible unless the Secretary of Labor determines that there are not enough workers in the U.S. who are available, qualified, and willing to do the work. And that the foreign national's employment will not affect the wages and working conditions in the United States. But special considerations may apply to professionals in education and those with exceptional abilities in arts and sciences. Professional athletes may also qualify for certifications.
In addition, foreign nationals who are graduates of health care professions are also inadmissible to practice their profession unless they pass the necessary licensure examination.
Each fiscal year, the number of temporary work visas given to nonimmigrants may be limited. Factors such as the state population (where they plan to work) will determine how many visas will be issued. This is particularly true for those coming to the U.S. to provide nursing services.
11. Prior Removal or Violation of Immigration Laws
Foreign nationals who have previously violated immigration laws, such as by entering the U.S. illegally or by misrepresentation of information in a previous visa application, are ineligible for visas. The misrepresentation must be material to the application to be ineligible for a U.S. visa. Or if the foreign national obtained entry to the U.S. through fraud.
But certain exceptions and waivers apply. For instance, under the Violence Against Women Act (VAWA), noncitizens who were victims of domestic violence by a U.S. citizen or a lawful permanent resident (LPR) may petition to stay in the country despite the violation of immigration law.
VAWA self-petitioners may apply for a Waiver of Grounds of Inadmissibility (Form I-601). This form is available for inadmissible nonimmigrants who want to be admitted into the U.S. as an immigrant or for adjustment of status.
Waiver of Ineligibility
Certain aliens who are otherwise ineligible for a visa may be able to get a waiver of ineligibility. For instance, if a foreign national can show that their presence in the country is not contrary to national safety, security, or public welfare. If their admission to the country would bring public benefit, a waiver of ineligibility may be given.
For instance, refugees who are inadmissible for visa application may seek refugee status. They can apply for a waiver of inadmissibility by filing an Application by Refugee for Waiver of Ground of Excludability (Form I-602). Note, however, that refugees and asylees are in a different category of visa applicant.
The waiver of ineligibility usually begins after the representative of the Department of State, such as a consular officer, determines that the applicant is ineligible for a U.S. visa. The officer will then allow the person to apply for a waiver of ineligibility.
The United States' foreign policy plays an integral part in these decisions. The U.S. facilitates the legal travel of foreign nationals while keeping the nation's security and public safety.
The U.S. Attorney General has discretion whether to grant a waiver to a visa applicant. They determine whether specific grounds for exclusion exist on a case-by-case basis. The Attorney General may also parole into the U.S. certain foreign nationals for urgent humanitarian reasons or significant public benefit.
Waiver of ineligibility does not guarantee a U.S. visa. It simply removes the grounds of inadmissibility. The visa applicant still has to meet the other requirements for visa application.
Do You Have Questions About U.S. Visa Eligibility? Seek Legal Help!
Whether a foreign national aims to adjust status, apply for nonimmigrant status, or a student visa, or explore the prospect of petitioning an immediate relative, knowing your rights and how to proceed with your application is essential.
Staying informed and learning about the application process is integral to your immigration journey. But don't let these concerns scare you away from acquiring a U.S. visa. Instead, seek legal help from an experienced immigration lawyer near you. They can assist you in navigating the complexities of the U.S.C. and immigration law.
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