Are You Admissible?

What are the consequences of being ‘inadmissible’?

Applicants who are inadmissible are not permitted by law to enter or remain in the United States, and therefore cannot obtain a family Green Card. To overcome the ground(s) of inadmissibility, applicants have to be exempt, or ask U.S. immigration agencies not to enforce the restriction through a waiver:

1. The applicant is ‘exempt’ from the ground of inadmissibility because the applicant is meeting the conditions of an exception that has been written into U.S. immigration law; or
2. The applicant is not exempt from the ground of inadmissibility, but a waiver is available, the applicant is eligible to submit the waiver, and the waiver is granted.

When the applicant is not exempt, the consequences on the Green Card process of the family applicant are significant:

1. Applicants going through consular processing, including those with an approved I-130, have to overcome the ground of inadmissibility before they can be allowed into the United States. This adds a significant step to the Green Card process because, if applicants are eligible to submit a waiver, they have to file it and then wait for it to be approved.
2. Applicants who would like to go through adjustment of status because they already reside in the United States are not allowed to do so. They have to switch to consular processing. Again the consequences are significant: most waivers (except the one solely about the 3-year and 10-year bars) have to be filed from abroad.

What is the difference between ‘admissibility’ and ‘eligibility’?

The applicant can be eligible for an immigration category but can, at the same time be inadmissible. Being ‘eligible’ for an immigration category means that 1) the sponsor has legal status in the United States; 2) the family relationship between applicant and sponsor meets U.S. immigration agencies criteria. To take an obvious example, the husband of a U.S. Citizen can be eligible for a family green card, but inadmissible because of multiple criminal convictions.

What is the difference between ‘admissibility’ and a ‘bar to adjustment’?

The consequences for applicants are fairly similar: applicants are either prevented from filing Form I-485 (bar to adjustment) or their I-485 will be denied because of inadmissibility. One of the main differences though is that there are many exemptions to the bar to adjustment (especially for immediate relatives), but very few for inadmissibility. In other words, most applicants who are inadmissible will have to file a waiver to overcome the ground(s) of inadmissibility.

Do all grounds of inadmissibility apply to all Green Card processes?

No, and that is what make things confusing. Most notably, the ground of inadmissibility of the 3-year or 10-year bars applies to applicants who go through consular processing, but not to applicants already residing in the United States who are seeking to adjust status. That also means that applicants who have to switch to consular processing because they cannot submit a request to adjust status (for example because they do not have a legal entry in the United States) may suddenly have to deal with the 3-year and 10-year bars.

Can a ground of inadmissibility be removed?

Yes, sometimes. Removing a ground of inadmissibility against an applicant is the purpose of a ‘waiver’.

What are the most frequent grounds of inadmissibility?

Immigration History

• 3-Year-Bar: having been in the United States for a period in excess of 180 days, during a single stay, and then departed the United States. (3-year bar from returning to the United States).
• 10-Year-Bar: having been in the United States for a period in excess of 1 year, during a single stay, and then departed the United States. (10-year bar from returning to the United States).
• Previously Removed: having been removed (or excluded or deported) from the United States or departed the United States on their own volition while a final order of removal was outstanding.
• ‘Permanent’ Bar: having been unlawfully in the United States for a total of one year (whether accrued during a single stay or multiple stays) AND then, illegally reentered the United States. (permanent bar from returning to the United States).
• Fraud and Misrepresentation: any person who seeks admission to the United States, a visa or other immigration travel or entry document, or any immigration benefit by fraud or willfully misrepresenting a material fact is inadmissible.
• Alien Smuggling: the act of assisting anyone in any way and at any time to enter the United States unlawfully, regardless of whether that person is a family member, or whether it was done for monetary gain. Alien smuggling does not just cover professional smugglers, it also applies to people who bring in their family members.
• Skipping Hearings: having failed to attend immigration and/or removal hearings
• Taxation Avoidance: having renounced U.S. citizenship to avoid taxation

Public charge:  a public charge is a person who is primarily dependent on the government for subsistence. Applicants likely to become a public charge are inadmissible.

Actions

• Unlawful Voting: applicants who were not allowed to vote in a Federal, state, or local election but voted anyway are inadmissible.
• Abusing Student Visa: abandoning a private school education that was the basis for an F1 visa and then undertaking a course at a publicly funded school.
• Practicing Polygamists: applicants who are planning to practice the custom of having more than one wife or husband at the same time are inadmissible.

Health

• Communicable Disease: having a communicable disease of public health significance;
• Vaccination Proof: having failed to receive necessary vaccinations against vaccine-preventable diseases;
• Disorder and Harmful Behavior: having a physical or mental disorder combined with a harmful behavior;
• Drug Abuser: being a drug abuser or addict.

Criminal activity

• Controlled Substance Violator: violation of any controlled substance law. Any violation of any laws, foreign or domestic, relating to illegal drugs can be a ground of inadmissibility.
• Multiple Criminal Convictions: any person convicted of two or more crimes is inadmissible if the person was sentenced to five or more total years in prison (counting the sentences in the aggregate). This applies regardless of whether the crimes involved moral turpitude or the multiple convictions arose from a single trial or scheme of misconduct.
• Crimes involving “moral turpitude”: the term moral turpitude is not defined under federal law. However, courts in the United States have defined it generally as an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.
• Controlled Substance Trafficker: if any immigration officer “knows or has reason to believe” that a person has been involved in trafficking in controlled substances, that person is inadmissible to the United States. This includes individuals who aid, abet, conspire, or collude with others in illicit drug trafficking.
• Prostitution and Commercialized Vice: any person coming to the United States to engage in prostitution, or any person who has engaged in prostitution within ten years of his or her application for a visa, adjustment of status, or entry into the United States, is inadmissible. This also applies to those who have made a profit from prostitution. Any person coming to the United States to engage in the unlawful promotion of, or participation in, sexual activities for profit (such as solicit customers, transport persons, or operate an establishment for prostitution purposes) is inadmissible.
• Immunity Asserter: any person who has committed a serious criminal offense and has asserted (is granted) immunity from criminal prosecution is inadmissible if he or she leaves the United States and fails to return and submit him or herself to the jurisdiction of the federal court overseeing the criminal case.
• Violations of Religious Freedom: any person who, while serving as a foreign government official, was responsible for or directly carried out particularly severe violations of religious freedom is inadmissible.
• Human Trafficking: any person who commits or conspires to commit human trafficking, or aids, abets, or colludes with an individual who is a trafficker in the United States or outside the United States is inadmissible.
• Child Abduction: international child abductors and relatives of such abductors

National security. Applicants may be found inadmissible if a Department of State consular officer, DHS immigration officer, or DOJ immigration judge, knows or has reasonable ground to believe that the non-citizen is a:

• Performer of Prejudicial Activities: any person who seeks to enter the United States to engage in espionage or sabotage, to attempt to overthrow the U.S. government, or to engage in any unlawful activity.
• Terrorist: any person who has participated in any terrorist activities or has any association with terrorist organizations, governments or individuals.
• Foreign Policy Threat: any person who presents a threat to foreign policy.
• Totalitarian Party Member: any person who has a membership in any totalitarian party.
• Nazi Participant: any peron who has participated in Nazi persecutions or genocide.

Other actions are not specifically grounds of inadmissibility, but have the same consequences:

• Money Laundering. Any person who is engaged, is engaging, or seeks to enter the United States to engage in the concealment of the origins of illegally obtained money is inadmissible. (No conviction required).
• Gang Affiliation. (No conviction required).