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In U.S. immigration law, inadmissibility presents significant challenges, affecting everything from visa applications to residency, and can arise from various factors, including public health issues or past immigration violations. Understanding inadmissibility is crucial for any foreign national seeking entry or permanent residency in the U.S. (i.e., a green card), as it directly impacts these processes.

In this guide, we will discuss the common grounds for inadmissibility and various options one may pursue to address them, including contesting the grounds of inadmissibility determinations, waivers, and other remedies.  

Please note that immigration law is subject to frequent legislative and regulatory changes, and the information in this guide is intended to be general and informative only.

Grounds of Inadmissibility 

It should be noted at the outset that under U.S. immigration laws, inadmissibility is not an automatic consequence of specific actions or situations; it's a status formally determined by immigration authorities. The most common grounds of inadmissibility include:

  • Criminal Convictions:
    • Crimes Involving Moral Turpitude (CIMT): These include crimes such as fraud, larceny, and intent to harm persons or things. The nature and severity of the crime play a significant role in determining inadmissibility.
    • Controlled Substance Violations: Involvement in any drug-related offenses often leads to inadmissibility.
    • Aggravated Felonies: A conviction for an aggravated felony is a serious ground for inadmissibility, covering severe crimes like murder, rape, and drug trafficking.
  • Public Health Concerns:
    • Communicable Diseases: Certain diseases that pose a public health risk can be grounds for inadmissibility.
    • Vaccination Requirements: Failure to meet vaccination standards set by U.S. health authorities can result in inadmissibility.
    • Physical or Mental Disorders: Conditions that threaten the safety of others or oneself.
  • Security and Terrorist Concerns:
    • Involvement or suspected involvement in terrorist activities.
    • Threats to national security or public safety.
  • Likelihood of Becoming a Public Charge:
    • Individuals who are deemed likely to rely on government assistance for subsistence can be considered inadmissible.
  • Prior Immigration Violations:
    • Overstaying a visa or violating the terms of a previous admission.
    • Previous removals or unlawful presence in the U.S.
  • Fraud or Misrepresentation:
    • Supplying false information or fraudulent documents in immigration processes.
  • Illegal Entrants and Immigration Violators:
    • Entering the U.S. without authorization or evading immigration inspection.

Consequences of an Inadmissibility Determination

Being determined inadmissible encompasses more than the inability to physically enter the U.S. at a point-of-entry; it carries a range of significant and far-reaching consequences. These impacts, extending beyond mere entry, vary based on the individual's circumstances and touch upon several key areas of immigration and residency, including:

  • Visa Application Denials:
    • The most immediate consequence of an inadmissibility finding is often the denial of both non-immigrant (temporary) and immigrant (permanent) visa applications.
    • The specific ground of inadmissibility can influence the likelihood of future visa denials, with some grounds having more severe implications than others.
  • Ineligibility for Adjustment of Status:
    • Individuals already in the U.S. may be unable to adjust their status (e.g., from a non-immigrant to an immigrant visa) if deemed inadmissible.
    • This can disrupt plans for long-term residency, employment, or family unification within the U.S.
  • Deportation and Removal Proceedings:
    • Inadmissibility can trigger removal proceedings, particularly if the individual is already in the U.S. This process involves appearing before an immigration judge and can lead to deportation from the U.S.
  • Barriers to Re-entry:
    • After deportation or voluntary departure, inadmissible individuals may face bars to re-entry, which can last for several years or, in some cases, indefinitely. The duration of these bars often depends on the nature of the inadmissibility and the individual's immigration history.
  • Impact on Future Immigration Applications:
    • A record of inadmissibility can affect future immigration applications, including family-based petitions.
    • Disclosure of past inadmissibility is typically required on future applications, which can complicate the approval process.

Motions and Appeals

While not all inadmissibility decisions are subject to appeal or reopening depending on the specific grounds and circumstances, the following legal avenues should be considered whenever possible:

  • Legal Motions:
    • Motions to Reopen: An individual can file a motion to reopen their inadmissibility case in an immigration court if there are new facts or evidence that weren't available at the original hearing. This can include new developments in personal circumstances or changes in the law.
    • Motions to Reconsider: These are filed to request the immigration court to reconsider its decision based on alleged errors in the application of law or facts. It’s essential to demonstrate that the initial decision was based on incorrect legal interpretations or overlooked important evidence.
  • Appeals:
    • The appeals process involves taking the inadmissibility decision to a higher authority, such as the Board of Immigration Appeals (BIA) or even federal courts.
    • During an appeal, legal arguments are presented as to why the inadmissibility decision should be reviewed and potentially reversed.
    • Successful appeals may result in overturning the inadmissibility determination or remanding the case back to the original immigration court for a new decision.

Waivers for Inadmissibility

Waivers provide legal mechanisms for individuals to enter or remain in the U.S. despite inadmissibility grounds. Note that waivers are discretionary, meaning approval is not guaranteed and depends on each case's individual circumstances.

The four most common waivers include:

  • I-601 Waiver: This waiver is for individuals who are inadmissible to the U.S. for various reasons, including certain criminal offenses, misrepresentation (fraud), or prior removals. Persons applying for these waivers must demonstrate that denying admission would cause extreme hardship to a U.S. citizen or lawful permanent resident spouse or parent.
  • I-601A Provisional Waiver: This waiver is for individuals who are inadmissible due to unlawful presence in the U.S. and have a U.S. citizen or lawful permanent resident spouse or parent.
  • I-212 Waiver: This waiver is for individuals who have previously been removed or deported from the U.S. and seek to return, and takes into account factors such as the amount of time that elapsed since the deportation, the applicant’s reformation and rehabilitation, and the reasons they are seeking reentry. 
  • 212(d)(3) Nonimmigrant Waiver: This waiver is for nonimmigrants determined to be inadmissible but wish to enter the U.S. temporarily. Whether a waiver will be granted is based on several factors, such as the reason(s) for inadmissibility, the seriousness of the applicant’s previous immigration or criminal law violations, and their reasons for seeking entry.

Adjustment of Status and Consular Processing

Beyond waivers, there are processes whereby individuals may legally adjust their status to permanent residency within the U.S. or apply to do so from abroad. These include:

  • Adjustment of Status: This is a process whereby individuals already in the U.S. on a nonimmigrant visa may apply for a green card without having to leave the U.S. This option is best for people who may face inadmissibility issues due to overstaying or minor immigration violations.
  • Consular Processing: This process is for individuals who are either outside the U.S. or cannot adjust their status within the U.S. and involves applying for a visa at a U.S. consulate or embassy abroad.

Special Considerations and Statuses

There are also special considerations and statuses that offer other ways individuals facing inadmissibility challenges can gain entry to and/or residency in the U.S., including:

  • U and T Visas: These may be available to victims of certain crimes such as domestic violence, physical or mental abuse, sexual assault, or trafficking. 
  • Asylum/Refugee Status: These are for persons facing persecution in their home countries due to race, religion, nationality, membership in a particular social group, or political opinion. 
  • Temporary Protected Status (TPS): These may be available to nationals of certain designated countries affected by extraordinary conditions such as war, natural disaster, or an epidemic.

Dealing with inadmissibility issues can be very difficult and confusing. The best way to approach each case varies widely, depending on the specific circumstances. It is often crucial to have expert support when navigating inadmissibility issues and finding solutions.

Through AAL’s directory, you can find many skilled attorneys with extensive experience in practicing immigration law who can offer you assistance to suit your specific circumstances, providing the knowledge and support to handle your case effectively.

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