Inadmissible Foreign Nationals
Foreign nationals who are inadmissible to the United States are not eligible to receive nonimmigrant visas to enter the United States. Nonimmigrant visas are any visas with a limited duration, such as a visitor’s visa or a work visa. Some inadmissible foreign nationals can overcome a visa denial by submitting a nonimmigrant visa waiver under INA section 212(d)(3). However, not all inadmissibility grounds can be waived, as certain serious criminal activities[1] are not subject to waiver. Contact us or schedule a confidential consultation today to discuss your case.
Considering a Nonimmigrant Visa Waiver?
Before applying for a nonimmigrant visa waiver, it must be determined whether a waiver is required in the first place—that is, whether the foreign national has committed an offense that renders him inadmissible to the United States. The most frequent reasons that invoke inadmissibility occur when a foreign national has been convicted of a crime or an immigration violation. Such offenses include prior unlawful presence, which renders a foreign national subject to the three- and ten-year bars, certain crimes involving moral turpitude (CIMT), controlled substance offenses, and less frequently health-related grounds [1].
It must be noted that not every criminal conviction renders a foreign national inadmissible and not deserving of receiving a nonimmigrant visa. For instance, under the Petty Larceny Exception of §1182 (a)(2)(ii)(II), a foreign national who has committed only one crime involving moral turpitude (CIMT) that is considered a petty offense (such as petty theft), may be eligible for an exception to inadmissibility if the following conditions are met: 1) the “petty offense” is the only CIMT the applicant has ever committed; 2) the sentence imposed for the offense was six (6) months or less; and 3) the maximum possible sentence for the offense does not exceed one year.
There are other exceptions as well that will not cause a foreign national to be inadmissible, including 1) the single offense under age 18 provision where more than five years have passed since the date of commission or release from confinement; 2) the juvenile offender exception; and 3) The purely political offense.
Under these circumstances, a consular officer should issue a nonimmigrant visa to the foreign national if they qualify for the underlying visa category (b-1/B-2, H-1B, E-2, etc.) without requesting a waiver. Contact us or schedule a confidential consultation with one of our competent attorneys.
[1] Such activities include: 1) any activity to violate any law of the United States relating to espionage or sabotage or to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information; 2) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means; 3) An alien whose entry or proposed activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States; and 4) participants in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing.
[2] In our opinion, unlawful presence and controlled substance offenses are very difficult to overcome by nonimmigrant visa waiver applications.
Determining Inadmissibility – did the offense culminate in a “Conviction” for Immigration? Purpose
The initial step in considering whether a nonimmigrant visa waiver is needed in the first place. Certain offenses may not necessarily lead to a conviction. For immigration purposes, a “conviction” means a formal judgment of guilt entered by the court. A conviction for immigration purposes also exists in cases where the adjudication of guilt is withheld if the following conditions are met: 1) A judge or jury has found the person guilty, or the person entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt; and 2) The judge has ordered some form of punishment, penalty, or imposed a restraint on the person’s liberty. It must be noted that some jurisdictions use various tools for first offenders, including pretrial diversions, which prevent fulfilling the aforementioned “conviction”’ elements. This means that there was no conviction for immigration purposes. Hence, it is critical to carefully analyze the events that culminated in the criminal process to determine the following action regarding the application for nonimmigrant visa application. Contact us or schedule a confidential consultation to analyze your circumstances.
In many cases, the consular officer must be educated that due to the local jurisdictional criminal process, a criminal “conviction” for immigration purposes did not occur and that the foreign national does not need a waiver to be granted a nonimmigrant visa. This can be accomplished through a memorandum of law that the immigration attorney can draft and submit to the consular officer during the visa interview.
Nonimmigrant Waiver Procedure
Once the decision is made to file a nonimmigrant visa waiver, an attorney must submit a legal brief to satisfy the following criteria: 1) the recency and seriousness of the activity causing the inadmissibility; 2) reasons for proposed travel to the United States; and 3) the positive or negative effects of the planned travel on U.S. interests. There is not an immigration form that must be submitted nor a filing fee that must be paid. The application for a nonimmigrant visa waiver must be submitted during the underlying visa application interview. The consular officer will simultaneously review the foreign national’s eligibility for the underlying visa, such as B-1/B-2, H-1B, E-2, L-1, and the waiver application. If the consular officer is satisfied that the foreign national is qualified for the underlying visa and that the waiver application merits a favorable exercise of discretion, they will recommend approval to the US Department of Homeland Security’s Admissibility Review Office (ARO). In most cases, the processing time for this process is at least 6 months. The validity period for the waiver is typically one to five years. The waiver validity can be renewed.
Waiver Denial & Appeal
If a consular officer or the ARO denies a waiver, the foreign national may seek an advisory opinion through the US Department of State’s Visa Office. Canadian Citizens may appeal a waiver denial to the Board of Immigration Appeal (BIA). Contact us or schedule a confidential consultation if a US Consular Officer denies your waiver application. An applicant can also renew the application for waiver again in the future and is not foreclosed from doing so.
Conclusion
The process of applying for a nonimmigrant visa waiver requires careful analysis of the facts and proper documentation of the application itself should the decision to file a waiver application be made. In many instances, a waiver application can be avoided after analyzing the circumstances that gave rise to an offense in the ensuing criminal process. Contact us or schedule a confidential consultation to review your particular situation. Our attorneys offer decades of experience in successful immigration law representation.