Inadmissibility Overview

The concept of inadmissibility applies to noncitizens who have not been legally admitted to the United States, as well as those who have been admitted and then either depart the country or apply for adjustment of status. Examples include:

  • An O-1B visa holder seeking admission at an airport is charged with inadmissibility where Customs and Border Protection (“CBP”) determines she violated the terms of her visa by working outside the terms of her visa in the past
  • A green card holder with an old drug conviction leaves the United States on vacation and upon return the conviction hits in the CBP system
  • An individual seeking adjustment of status based on marriage to a U.S. citizen and the Citizenship and Immigration Services officers deems him inadmissible based on a credit card fraud conviction

Generally, once the government alleges a noncitizen is inadmissible, it is the noncitizen’s burden to prove he or she is either not in fact admissible or is eligible for a waiver of inadmissibility.

The specific grounds of inadmissibility under the Immigration and Nationality Act are:

Health-related. Applies to a noncitizen who (i) has certain communicable diseases, (ii) failed to obtain vaccinations for specified diseases, (iii) is a drug abuser and addict, or (iv) has a physical or mental condition that the government finds poses a threat to the property, safety, or welfare of the person or others.

Criminal-related. In addition to being one of the most common grounds, inadmissibility based on criminal activity is easily one of the most complex areas of U.S. immigration law. The criminal grounds of inadmissibility apply to any noncitizen who:

  • has a conviction for, or in some cases admits to, commission of a “crime involving turpitude” (e.g. theft crimes such as shoplifting, certain DUI offenses, fraud crimes such as credit card fraud, and many others).
  • has a conviction for, or in some cases admits to, committing a controlled substance offense (this ground covers virtually all drug offenses, including New York statutes related to smoking marijuana in public).
  • has two or more criminal convictions of any kind for which he or she was sentenced to aggregate terms of confinement totaling five years or more (e.g. a 1995 conviction for which a person
  • the government knows or has reason to believe he or she is or was a controlled substance trafficker. In some cases this ground extends to family members of a known trafficker.
  • has engaged in prostitution (engaging in prostitution, running a prostitution enterprise, or solicitation of a prostitute) or other illegal commercialized vice.
  • has sought immunity from criminal prosecution.
  • is a government official who has committed particularly severe violations of the religious freedom of others.
  • is a significant human trafficker; or
  • is a money launderer.

In most cases the criminal activity can have occurred in the United States or abroad; e.g. a British citizen found guilty of a drug office in a London court is inadmissible based on the U.K. conviction.

It is important to remember that a conviction for the crime is not always necessary in order for a person to be found inadmissible for criminal-related activities. In certain cases merely admitting to having committed the essential elements of a crime is sufficient for the government to render a noncitizen inadmissible. In the case of suspected drug traffickers, it is enough for the government to have “reason to believe” the noncitizen is involved in trafficking. By illustration, a professional working in the U.S. on an H-1B visa who is arrested twice on shoplifting charges, but has those charges dismissed, may still be found inadmissible if he admits to a consular officer that he in fact took items from the stores.

In certain cases a “waiver” may be available to a noncitizen found inadmissible for criminal-related activity. There are several types of waiver and eligibility depends on the specific waiver sought. For some waivers, such as certain forms of the 212(h) waiver, eligibility depends on a showing of “extreme hardship” to a relative who is a U.S. citizen or lawful permanent resident. For other waivers, such as the 212(d)(3) nonimmigrant waiver, favorable discretion on the part of the government is critical. Rehabilitation is the determinative factor in other waivers, while the length of the term of imprisonment is critical in others. In all cases, careful analysis involving the facts surrounding the criminal activity, the law of the jurisdiction where the activity took place and the relevant immigration law and regulations is essential in determining eligibility for a waiver.

Security and foreign policy-related grounds. This ground of inadmissibility covers a broad range of activities, including espionage, sabotage, violations of laws prohibiting the export from the United States of goods, technology, or sensitive information, advocating the overthrow of the government, and terrorism.

The part of the law pertaining to terrorist activities is frequently used by the government and can encompass activity that occurred many years in the past, including providing material support to a group that the U.S. government deems to be a terrorist organization or raising funds for such an organization. Thus, a noncitizen that participated in a minor capacity in a civil war in his or her country decades ago may be found inadmissible for terrorism. Examples of such cases include an Albanian who joined a local self-defense force during the Yugoslavian civil war after members of an opposing group murdered several people in his village and a Central American woman who provided medical assistance to U.S.-backed Contras in the 1980s. If you have been charged with inadmissibility for alleged participation in terrorist activities it is important that you review the government’s charges with counsel in order to determine if you are properly charged or are eligible for waiver.

Public charge grounds. An alien who the government determines is likely to become a public charge (i.e. rely on public assistance) is inadmissible. This ground typically arises in adjustment of status applications where the income of the U.S. citizen or lawful permanent resident petitioner is less than 125% of the federal poverty guidelines. The public charge finding can be overcome by obtaining a guarantee, known as an “affidavit of support,” from an additional U.S. citizen or lawful permanent resident to reimburse the government for any public benefits the noncitizen may take in the future or, in some cases, by including the noncitizen’s own income into the poverty line calculation. Contrary to popular belief, the affidavit of support obliges the person signing it only to reimburse the government for certain benefits taken by the noncitizen during a specific period of time; it does not obligate the signer to provide any kind of direct support to the alien.

Labor certification and physician and health care worker requirements. This ground most commonly applies to noncitizens who the government believes are seeking to enter the United States to work without proper authorization from the U.S. Department of Labor. It also applies to physicians, nurses, and certain other healthcare professionals who lack proper licensing to engage in their profession in the United States. Further it is one of the most common grounds of inadmissibility and is often lodged against ESTA travelers in the entertainment industry who CBP believes are entering the country to perform without an O-1B, P-1S or other appropriate visa.

Illegal entrants and immigration violations. Perhaps the most commonly employed ground of inadmissibility, this applies to noncitizens who:

  • are present without admission or parole (i.e. entered the United States unlawfully, such as crossing the border without inspection).
  • failed to attend previous removal proceedings.
  • committed fraud or willful misrepresentation in seeking an immigration benefit.
  • entered or attempted to enter the United States as a stowaway on a vessel.
  • are engaged in alien smuggling.
  • are deemed to be student visa abusers.

Perhaps the most commonly encountered of these is fraud or willful misrepresentation. Examples of such fraud and willful misrepresentation include failing to disclose a past arrest on an immigration application, entering the United States with a false visa, and lying to a consular officer during a visa interview about one’s intentions for coming to the United States. There are countless other examples. While many grounds of inadmissibility bar noncitizen from entering the country for a specific period of time (e.g. five years after departure for aliens who failed to attend a removal proceeding or abused a student visa) the bar for fraud or willful misrepresentation is permanent.

A related ground is that for a noncitizen who makes a false claim to U.S. citizenship for the purpose of obtaining an immigration benefit or any other federal or state benefit, there is no waiver to the ground of inadmissibility, though narrow exceptions apply in the cases of certain children of U.S. citizens.

Documentary requirements. This ground applies to noncitizens who seek to enter the United States without proper, valid documents (e.g. a valid passport or current visa).

Ineligible for citizenship and draft evaders. A noncitizen is ineligible for citizenship, and thus inadmissible, for certain activities relating to desertion from the U.S. military during time of war or discharge from military service based on alienage.

Unlawful presence and illegal reentry after a prior deportation, removal, or exclusion order. Another highly complex area of the immigration law, this ground affects noncitizens who accrued more than 180 days of unlawful presence in the United States and those who returned to the country after having been deported previously.

Previously removed noncitizens

A noncitizen who was ordered removed from the United States and departs the country after that order must generally spend a specified period of time outside the United States (5, 10 or 20 years in most cases) before being permitted to enter the country again.

In some cases a noncitizen subject to this ground of inadmissibility may apply to the Secretary of DHS for advance permission to return to the country prior to the expiration of the bar.

Unlawful presence

With regard to unlawful presence, a noncitizen who remains unlawfully in the United States for a period exceeding 180 days and subsequently departs the country will be found inadmissible for a period of three or ten years depending on the actual length of unlawful presence. This bar can prove devastating to families, especially in the case of married couples where the U.S. citizen spouse has no connection to the noncitizen spouse’s country of origin or where the noncitizen spouse’s country is undergoing civil strife or an economic crisis.

However, the law’s definition of “unlawful presence” is complex and the fact that a noncitizen is present in the country without a valid visa does not always equate to unlawful presence. A full discussion of the exceptions to unlawful presence is beyond the scope of this section and we therefore encourage you to contact Jones Fletcher for a consultation if you believe that you or a family member may be subject to the unlawful presence bar.

Even if one is subject to the unlawful presence bar, a waiver is available to a noncitizen that is able to demonstrate that his or her continued inadmissibility is an extreme hardship to his or her U.S. citizen or lawful permanent resident spouse or parent. While the application for such a waiver usually must be made only after the noncitizen departs the United States, in limited cases he or she may be able to apply prior to departure under the recently created “I-601A” waiver program. Even where a noncitizen has a qualifying relative for purposes of a waiver, there are numerous practical considerations that must be considered in evaluating the viability of a waiver application. Further, the I-601A waiver is procedurally complex and many who believe that they are eligible may in fact not be. We therefore strongly encourage you to set up a consultation with Jones Fletcher to discuss the strengths and weaknesses of your waiver case before beginning the complex and costly application process.

Unlawfully present after previous immigration violations

One of the most devastating bars under the immigration law concerns a noncitizen who after either accruing more than one year of unlawful presence or being ordered removed from the country, departs the United States and later enters or attempts to enter the country again without proper authorization. Those found to have done so will be deemed permanently inadmissible. With a very narrow exception for certain battered spouses, there is no waiver available to a noncitizen found inadmissible under this section, though after ten years outside the United States he or can apply for advance permission to return.

Violators of religious freedom. A noncitizen who, while serving as a foreign government official, was responsible for or carried out, at any time, severe violations of religious freedom is inadmissible, as are his or her spouse and children.

Miscellaneous grounds. In addition to the ground discussed above the immigration laws of the United States also contain bars to the following noncitizens from entering the United States:

  • Polygamists
  • Guardians required to accompany inadmissible helpless children
  • Person engaged in international child abduction
  • Noncitizens, including green card holders, who voted in U.S. elections (this is a permanent bar, though there are narrow exemptions for certain children of U.S. citizens)
  • Former U.S. citizens who renounced citizenship to avoid taxation
  • Certain former J-1 exchange visitors who failed to obtain a waiver of the two year foreign residency requirement (this bar affects many noncitizen professionals, including physicians who received medical training in the U.S. under the J-1 visa program and can be waived if the noncitizen qualifies for one of the so-called “J-1 waivers”)
  • Persons subject to the Cuban Liberty and Democratic Solidarity Act of 1996, i.e. those found to have to have confiscated property in Cuba and to have engaged in certain related activity after March 12, 1996
  • Certain confiscators of American property abroad
  • Certain Haitian nationals accused of human rights violations in Haiti
  • Noncitizens who disclose confidential business information relating to chemical weapons
  • Aiders or abettors to Colombian insurgent and paramilitary groups
  • Noncitizens engaged in coerced organ or bodily tissue transplants