Immigration Focus: Inadmissibility and Bars to Adjustment of Status in the U.S.
The grounds of inadmissibility to the United States refer to a set of legal grounds that may render an individual ineligible for admission to the US, regardless of whether they hold a visa or not. These grounds are set out in the Immigration and Nationality Act (INA) and cover a wide range of categories, including health, criminality, security, and immigration violations.
Legal authority to not admit certain individuals is found in INA § 212 (8 USC § 1182)- Inadmissible aliens.
I. Grounds of Inadmissibility
There are many grounds of inadmissibility (see list below). There are health-related grounds, criminal grounds, security-related grounds, public charge grounds and so on. However, most common grounds of inadmissibility are found under the following categories:
- Unlawful presence – 212(a)(9)(B)
- Prior removal – 212(a)(9)(A)
- Misrepresentation – 212(a)(6)(C)(i)
- Criminal convictions 212(a)(2)(A) and 212(a)(2)(B)
- Unlawful Presence after Prior Immigration Violation – 212(a)(9)(C)
Below, we will discuss each ground of inadmissibility and what waivers are available if any.
|*Note that inadmissibility grounds and waivers of such grounds are highly technical topics. |
The below overview is not intended as a guide for making waiver applications. We have seen too many poorly executed waiver applications that could have resulted in approvals if they were prepared by well informed and experienced practitioners. Remember that each case is different and consult with an experienced immigration attorney before making your waiver application.
1. Unlawful presence – 212(a)(9)(B)
INA 212(a)(9)(B) makes ineligible, and therefore ineligible for a visa, individuals who have, since April 1, 1997, been “unlawfully present” in the United States for more than 180 days.
This ground of inadmissibility applies to individuals who have been unlawfully present in the US for certain periods of time. Generally, individuals who accrue more than 180 days but less than one year of unlawful presence are barred from reentering the US for three years, while those who accrue more than one year of unlawful presence are barred for ten years.
- Does not begin accumulate until the individual is 18 years of age.
- Inadmissibility is imposed on unlawful presence for more than 180 days
- If an individual is unlawfully present for 180 days but less than 1 year, and then leaves the U.S., they are deemed inadmissible for 3 years (the 3 year bar)
- If an individual is unlawfully present for more than 1 year, and then leaves the U.S., they are deemed inadmissible for 10 years (the 10 year bar)
- The 3/10 year bar is engaged when the individual leaves the U.S.
- Waivers are immediately available
What type of waiver is available for unlawful presence under 212(a)(9)(B)? Extreme hardship waiver is available under 212(a)(9)(B)(v) where extreme hardship can be proved to US citizen or Permanent Resident spouse or parent. A child is not a qualified relative for an unlawful presence waiver.
For this topic, it is important to understand what is considered unlawful presence in the US. This is a big topic and can be found discussed in the following consolidated USCIS memorandum:
2. Prior removal – 212(a)(9)(A)
Section 212(a)(9)(A) of the Immigration and Nationality Act (INA) outlines the grounds of inadmissibility for individuals who have been previously removed from the United States.
INA 212(a)(9)(A)(i) makes ineligible for a visa any individual who has been ordered removed under INA 235(b)(1) or INA 240 as an arriving traveler, and who seeks admission within 5 years (or 20 years if second or subsequent removal or at any time if convicted of an aggravated felony) of the date of such removal, unless prior permission has been granted (see 9 FAM 302.11-2(B)(5)).
INA 212(a)(9)(A)(ii) makes ineligible for a visa anyone who has been ordered removed from the U.S. or departed while an order of removal was outstanding and who seeks admission within 10 years (or within 20 years if it is after a second or subsequent removal or at any time if the individual is convicted of an aggravated felony) from the date of such departure or removal, unless prior permission has been granted (see 9 FAM 302.11-2(B)(5)).US DOS FAM 9 FAM 302.11
(U) INELIGIBILITY BASED ON PREVIOUS REMOVAL AND UNLAWFUL PRESENCE IN THE UNITED STATES – INA 212(A)(9)
What type of waiver is available for prior removal under 212(a)(9)(A)? Waiver for prior removal from the US is available under 212(a)(9)(A)(iii).
3. Misrepresentation – 212(a)(6)(C)(i)
INA 212(a)(6)(C)(i) provides that “any alien who by fraud or willfully misrepresenting a material fact seeks to procure (or sought to procure or has procured) a visa, other documentation, or admission into the United States or some other benefit provided under” the INA is ineligible.
This ground of inadmissibility applies to individuals who have willfully misrepresented a material fact in order to obtain an immigration benefit, such as a visa or green card. This includes misrepresentations related to family relationships, employment, or criminal history.
- Example: laying about being married
- laying about a material fact
- permanent ban on admissibility
- Waivers immediately available
What type of waiver is available for misrepresentation under 212(a)(6)(C)(i)? An extreme hardship waiver is available under 212(i) when extreme hardship can be proved to US citizen or Permanent Resident spouse or parent. A child is a qualified relative for an unlawful presence waiver. VAWA applicants can show hardship to themselves.
4. Criminal convictions 212(a)(2)(A) and 212(a)(2)(B)
Crimes of moral turpitude: In general, applicants who have been convicted of, or admit to commission of, certain statutory offenses that involve moral turpitude, whether under U.S. law or foreign law, are ineligible under INA 212(a)(2)(A)(i)(I).
Multiple criminal convictions: INA 212(a)(2)(B) provides that any applicant convicted of two or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were five years or more is ineligible.
Individuals who have been convicted of certain crimes, including crimes involving moral turpitude, controlled substances, or multiple criminal convictions, may be inadmissible to the US based on 212(a)(2). Crimes carry permanent inadmissibly.
What type of waiver is available for criminal convictions under 212(a)(2)(A) and (B)? An extreme hardship waiver is available under 212(h) when extreme hardship can be proved to US citizen or Permanent Resident spouse or parent. A child is a qualified relative for an unlawful presence waiver. VAWA applicants can show hardship to themselves.
5. Unlawful Presence after Prior Immigration Violation under 212(a)(9)(C)
Individuals who have been previously present in the US without lawful status and who leave the US or are removed, and subsequently come back to the US without inspection are subject to inadmissibility under 212(a)(9)(C).
Waiver for 212(a)(9)(C) is only available after the passing of 10 years outside the US with an exception for VAWA applicants. What type of waiver is available for return without inspection under 212(a)(9)(C)? Waiver is available under 212(a)(9)(C)(iii).
II. Temporary inadmissibility vs Permanent inadmissibility
Under US immigration law, there are both temporary and permanent bars to admissibility for foreign nationals seeking to enter or stay in the US. Temporary bars refer to inadmissibility grounds that result in a ban for a limited period, while permanent bars refer to inadmissibility grounds that result in a permanent ban.
Temporary bars to admissibility generally arise from violations of US immigration law, such as unlawful presence, prior removal, or failure to maintain status. For example, individuals who accrue more than 180 days but less than one year of unlawful presence in the US are barred from re-entering the US for three years, while those who accrue more than one year of unlawful presence are barred for ten years. Similarly, individuals who have been previously removed from the US are generally inadmissible for a period of time ranging from 5 to 20 years, depending on the circumstances of the removal.
In contrast, permanent bars to admissibility arise from what are considered more serious violations of US immigration law, such as certain criminal convictions or terrorist activities. For example, individuals who have been convicted of a crime involving moral turpitude are generally permanently barred from entering the US.
Waivers may be available for both types of inadmissibility depending on circumstances. The difference being that for some violations an applicant may choose to let the inadmissibility bar lapse, while for others, the inadmissibility bar does not lapse and can only be overcome with a waiver.
III. Bars to Adjustment of Status
Certain intending immigrants may be barred from adjusting their status based on their history. Legal authority to not allow certain individuals to adjust status to that of a permanent resident is found in INA § 245 (8 USC § 1255)- Adjustment of status of nonimmigrant to that of person admitted for permanent residence
Those adjusting status to a permanent resident must both be found not inadmissible and be found not to have any bars on adjusting status.
IV. I-601: Application for Waiver of Grounds of Inadmissibility – immigrant waiver considerations
This is a type of permanent waiver that allows for immigration. To be eligible for the I-601 waiver, an individual must demonstrate that their inadmissibility would result in extreme hardship to their US citizen or lawful permanent resident spouse or parent. Extreme hardship is a higher standard than mere hardship, and requires a showing that the qualifying relative would suffer more than the normal hardship that would be expected with a family separation. The applicant must also show that the qualifying relative would be unable to relocate to the applicant’s home country due to financial, medical, or other reasons.
In cases where the grounds of inadmissibility are related to a medical issue, a medical issue must be serious enough to qualify as an extreme hardship, and the evidence presented must clearly demonstrate the severity of the condition and its impact on the qualifying relative. This should be backed with medical records, letters from physicians, and letters from individuals with knowledge of impact on the life of the qualifying relative. In addition, the evidence should also demonstrate why the qualifying relative cannot receive adequate medical care in the applicant’s home country, or why the cost of treatment in the home country would be prohibitive.
V. I-192: Application for Advance Permission to Enter as a Nonimmigrant
For discussion of I-192 waivers for nonimmigrants, see Immigration Focus: Form I-192: Application for Advance Permission to Enter as a Nonimmigrant filed with CBP
Tips for Writing Reference Letters for Waiver Applications on FORM I-192, Application for Advance Permission to Enter as a Nonimmigrant
How Long Does CBP take to process I-192 Advance Permission to Enter Waivers?
A great discussion of grounds of inadmissibility is found in US DOS Foreign Affairs Manual 9 FAM 301.4
INELIGIBILITIES AND GROUNDS FOR REFUSALS:
Summary of Grounds for Refusal (by Section of Law):
(1) INA 212(a)(1): Health and medical-related grounds (see 9 FAM 302.2);
(2) INA 212(a)(2): Criminal and related grounds (see 9 FAM 302.3 and 9 FAM 302.4);
(3) INA 212(a)(3): Security and related grounds (see 9 FAM 302.5, 9 FAM 302.6, and 9 FAM 302.7);
(4) INA 212(a)(4): Public charge (see 9 FAM 302.8);
(5) INA 212(a)(5): Labor certification, qualification (see 9 FAM 302.1-5);
(6) INA 212(a)(6): Illegal entrants, immigration violators, misrepresentation (see 9 FAM 302.9);
(7) INA 212(a)(7): Documentation requirements (see 9 FAM 302.1-3 and 9 FAM 302.1-4);
(8) INA 212(a)(8): Ineligible for citizenship (see 9 FAM 302.10);
(9) INA 212(a)(9): Previously removed, unlawfully present, unlawfully present after previous immigration violations (see 9 FAM 302.11);
(10) INA 212(a)(10): Other miscellaneous grounds (see 9 FAM 302.12);
(11) INA 212(e): Former exchange visitors (see 9 FAM 302.13-2);
(12) INA 212(f): Presidential Proclamations and sanctioned activity (see 9 FAM 302.14);
(13) INA 214(b): Presumption of immigrant status (see 9 FAM 302.1-2);
(14) INA 221(g): Application does not comply with INA (see 9 FAM 302.1-8); and
(15) INA 222(g): Nonimmigrant overstay, application not in country of nationality (see 9 FAM 302.1-9).US DOS Foreign Affairs Manual 9 FAM 301.4
INELIGIBILITIES AND GROUNDS FOR REFUSALS
c. Summary of Grounds for Refusal (by Category): See paragraph b for a list by section of law.
(1) Inadequate Documentation or Qualification:
(a) Presumption of immigrant status – see 9 FAM 302.1-2;
(b) IV documentary requirements – see 9 FAM 302.1-3;
(c) NIV documentary requirements – see 9 FAM 302.1-4;
(d) Labor certification requirements – see 9 FAM 302.1-5;
(e) Unqualified physician – see 9 FAM 302.1-6;
(f) Uncertified foreign health care worker – see 9 FAM 302.1-7;
(g) Failure of application to comply with INA – see 9 FAM 302.1-8; and
(h) Individuals subject to INA 222(g) – see 9 FAM 302.1-9.
(2) Health and Medical Grounds:
(a) Communicable diseases – see 9 FAM 302.2-5;
(b) Required vaccinations – see 9 FAM 302.2-6;
(c) Physical or mental disorder or condition posing threat to property or safety – see 9 FAM 302.2-7; and
(d) Drug abuse or addiction – see 9 FAM 302.2-8.
(3) Criminal Grounds:
(a) Crimes involving moral turpitude – see 9 FAM 302.3-2;
(b) Multiple criminal convictions – see 9 FAM 302.3-4;
(c) Prostitution and criminalized vice – see 9 FAM 302.3-6;
(d) Criminal activity where immunity asserted – see 9 FAM 302.3-7;
(e) Human trafficking – see 9 FAM 302.3-8; and
(f) Money laundering – see 9 FAM 302.3-9.
(4) Grounds Related to Controlled Substances:
(a) Controlled substance violations – see 9 FAM 302.4-2; and
(b) Controlled substance trafficking – see 9 FAM 302.4-3.
(5) National Security Grounds:
(a) Intent to commit espionage or sabotage – see 9 FAM 302.5-2;
(b) Intent to violate export control laws – see 9 FAM 302.5-3;
(c) Intent to commit unlawful activity in the United States – see 9 FAM 302.5-4;
(d) Intent to overthrow U.S. government – see 9 FAM 302.5-5;
(e) Immigrant membership in a totalitarian party – see 9 FAM 302.5-6.
(6) Terrorism-Related Grounds:
(a) Terrorist activities – see 9 FAM 302.6-2;
(b) Association with terrorist organizations – see 9 FAM 302.6-3;
(c) Section 306 of the Enhanced Border Security and Visa Reform Act of 2002 – see 9 FAM 302.6-4.
(7) Human Rights Violations:
(a) Participation in particularly severe violations of religious freedom – see 9 FAM 302.7-3.
(b) Participation in Nazi persecutions – see 9 FAM 302.7-4;
(c) Participation in genocide – see 9 FAM 302.7-5;
(d) Participation in torture – see 9 FAM 302.7-6;
(e) Participation in extrajudicial killing – see 9 FAM 302.7-7;
(f) Participation in the use or recruitment of child soldiers – see 9 FAM 302.7-8; and
(g) Participation in forced or coercive abortion or sterilization – see 9 FAM 302.7-9;
(h) Participation in coercive organ or tissue transplantation – see 9 FAM 302.7-10; and
(i) Presidential Proclamation 8697 – see 9 FAM 302.7-11.
(8) Public Charge: See 9 FAM 302.8.
(9) Illegal Entry, Misrepresentation, and Other Immigration Violations:
(a) Present without admission or parole – see 9 FAM 302.9-2;
(b) Failure to attend removal proceedings – see 9 FAM 302.9-3;
(c) Misrepresentation – see 9 FAM 302.9-4;
(d) Falsely claiming citizenship – see 9 FAM 302.9-5;
(e) Stowaways – see 9 FAM 302.9-6;
(f) Smugglers – see 9 FAM 302.9-7;
(g) Subject to civil penalty – see 9 FAM 302.9-8; and
(h) Student visa abusers – see 9 FAM 302.9-9.
(10) Citizenship restrictions:
(a) Ineligible for citizenship – see 9 FAM 302.10-2;
(b) Departed, remained outside U.S. to avoid military service – see 9 FAM 302.10-3.
(11) Previous removal and unlawful presence:
(a) Individuals previously removed – see 9 FAM 302.11-2;
(b) Individuals unlawfully present – see 9 FAM 302.11-3; and
(c) Individuals unlawfully present after previous immigration violation – see 9 FAM 302.11-4.
(12) Ineligibility Based on Other Activities:
(a) Practicing polygamists – see 9 FAM 302.12-2;
(b) Guardian required to accompany helpless individual – see 9 FAM 302.12-3;
(c) International child abduction – see 9 FAM 302.12-4;
(d) Unlawful voters – see 9 FAM 302.12-5;
(e) Former citizens who renounced citizenship to avoid taxation – see 9 FAM 302.12-6.
(13) Miscellaneous Ineligibilities:
(a) Former foreign exchange visitors – see 9 FAM 302.13-2;
(b) Unauthorized disclosure of U.S. confidential business information – see 9 FAM 302.13-3;
(c) Frivolous asylum applications – see 9 FAM 302.13-4; and
(d) Waivers of rights, privileges, exemptions, and immunities – see 9 FAM 302.13-5.
(14) Sanctioned Activities:
(a) Adverse foreign policy consequences – see 9 FAM 302.14-2;
(b) Suspension of entry by the president – see 9 FAM 302.14-3;
(c) Individuals who have aided and abetted Colombian insurgent and paramilitary groups – see 9 FAM 302.14-4;
(d) Individuals involved in confiscation of property of U.S. nationals – see 9 FAM 302.14-5;
(e) Specially Designated Nationals – see 9 FAM 302.14-6;
(f) Iran Threat Reduction and Syria Human Right Act – see 9 FAM 302.14-7;
(g) Sergei Magnitsky Rule of Law Accountability Act of 2012– see 9 FAM 302.14-8;
(h) Participation in certain political killings– see 9 FAM 302.14-9; and
(i) Presidential Proclamation 9645 – see 9 FAM 302.14-10.US DOS Foreign Affairs Manual 9 FAM 301.4
INELIGIBILITIES AND GROUNDS FOR REFUSALS