Waivers

Prior Visa Overstays

Overstaying a visa (remaining in the U.S. past the expiration date on the I-94 card) can have consequences that are either dire or negligible, depending on the facts and circumstances of the case.

If a person overstayed a U.S. visa for more than 180 days and departed the U.S., that person is barred for three years from re-entering the U.S.

If a person overstayed a U.S. visa for more than one year and departed the U.S., that person is barred for ten years from re-entering the U.S.

There are some exceptions, however. For example, periods of stay while the foreign national was under 18 years old and periods of overstay before April 1, 1997 are not counted toward the overstay time. Certain types of student visa overstays may also not count toward the overstay time.

If the three or ten year bar applies to a foreign national, and that foreign national marries a U.S. citizen, the citizen may apply for a waiver of the bar based on “extreme hardship” to the U.S. citizen. Note that “extreme hardship” must be in comparison to other U.S. citizens in a like circumstance (that is, married to but not able to lawfully reside with a foreign national). So, your suffering has to be extreme and exceptional to convince the government that you should obtain a waiver. Such waivers are possible, but you’ll almost certainly need the help of an experienced immigration attorney.

Criminal History

Foreign nationals with one or more criminal convictions in their past are typically ineligible to receive an immigrant visa to enter the U.S. (non-immigrants are likewise barred, although the bar is not quite as broad as it is for immigrant visas).

There are some exceptions to the bar, however:

    • 1. The offense is not a crime of “moral turpitude” (a very slippery concept that some courts have equated with a fundamental “baseness”, “depravity” or “vileness”, but for which no clear definition exists)
    • 2. The offense was “purely political”
    • 3. The foreign national has (1) committed only one crime involving moral turpitude at any time; AND (2) “was not sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed) AND (3) the conviction carries a maximum possible sentence of one year or less.

Drug traffickers are ineligible for a visa, even if there has been no conviction, as long as the consular or immigration officer knows or has reason to believe that the visa applicant has been involved in trafficking.

A person coming to the U.S. to engage in prostitution, or who has engaged in prostitution within ten years of their application for entry, is inadmissible, even if there was no criminal conviction.

An amnesty or parole does not remove the crime from calculation of the bar. Such crimes are treated for U.S. immigration purposes exactly as though the conviction remained in place.

Similarly, a “deferred adjudication” whereby the record of the offense is expunged from the defendant’s record is nonetheless regarded as a conviction under U.S. immigration law.

If the foreign national has admitted to the crime, even if there was no conviction, he or she will be barred from receiving a visa (this can even occur during the medical exam preceding the consular interview if the unwitting applicant admits to prior substance abuse or some other crime).

Health Based Ineligibility

The following communicable diseases of public health significance render a person inadmissible:

      • 1. Chancroid
      • 2. Gonorrhea
      • 3. Granuloma inguinale
      • 4. Acquired immune deficiency syndrome (HIV/AIDS)
      • 5. Hansen’s disease (infectious leprosy)
      • 6. Lymphogranuloma venereum
      • 7. Infectious state syphilis
      • 8. Infectious tuberculosis (TB) (clinically active)

In addition, the following physical or mental disorders can render a person inadmissible:

      • 3. Current physical or mental disorders, with harmful behavior associated with the disorder.
      • 2. Past physical or mental disorders with associated harmful behavior that is likely to recur or lead to other harmful behavior.

Harmful behavior is behavior that may pose, or has posed, a threat to the property, safety or welfare of the applicant or others.

A record of driving under the influence of alcohol (DUI or DWI) can lead to an investigation by the government to determine whether an immigrant has a “mental disorder associated with harmful behavior.”

For certain treatable illnesses (tuberculosis, for example), an arrangement with the overseas consulate may be possible whereby the applicant returns home to undergo a treatment regime for a specified length of time and then returns to the “panel physician” for re-examination, and if the illness is in complete remission, the visa is issued without the need for a waiver.

Waivers are possible for most of the health grounds of inadmissibility except for drug abuse or addiction. In evaluating all such waivers, the government adjudicator is obligated to ensure that the immigrant will not pose a threat to the health or welfare of the U.S. public, and that there will be no financial cost incurred by any level of government agency or by U.S. taxpayers due to the admission of the immigrant (except in such cases where an authorized U.S. agency has given its prior consent).

HIV applicants will also have to show the following:

      • Medical treatment has been arranged in the United States;
      • The applicant is aware of the nature and severity of his or her medical condition;
      • The applicant has provided evidence of counseling; and
      • The applicant has demonstrated a knowledge of the modes of transmission of the virus.

In addition, HIV applicants have a particularly high burden with regard to the “public charge” aspect of the waiver. The applicant’s U.S. sponsoring relative must demonstrate financial resources and/or health insurance to absorb the estimated $500,000 plus lifetime cost of health care for an AIDS sufferer before the waiver will be further be considered.

A person with a physical or mental disorder which threatens the safety of the applicant or others may receive a waiver if they submit documentation that convinces the government that they are fully recovered.

Adam Walsh Child Protection And Safety Act

The Adam Walsh Child Protection and Safety Act renders ineligible to file a petition for immigrant status under any petitioner who has been convicted of a “specified offense against a minor” involving any of the following:

A) An offense (unless committed by a parent or guardian) involving kidnapping.

B) An offense (unless committed by a parent or guardian) involving false imprisonment.

C) Solicitation to engage in sexual conduct.

D) Use in a sexual performance.

E) Solicitation to practice prostitution.

F) Video voyeurism as described in section 1801 of title 18, United States Code.

G) Possession, production, or distribution of child pornography.

H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.

I) Any conduct that by its nature is a sex offense against a minor.

Consular officers are obligated to determine the criminal record of the petitioner as a precondition of issuing a K visa or family-based immigrant visa. If there is an offense against a minor, the government will seek further information from the petitioner as well as require his or her fingerprinting in the U.S. before deciding whether the bar will apply.

A waiver is possible under the Adam Walsh Act only if the petitioner is able to convince the government that the petitioner poses no threat to the beneficiary or beneficiaries of the petition. A negative decision on the waiver is not appealable.

Other Bars and Ineligibilities

The following types of activity can also form the basis of a bar to entry to the U.S.:

Immigration fraud or misprepresentation

Terrorist activities

Membership in a Communist or any totalitarian party:

Espionage or sabotage against the U.S.

Illegal export of sensitive U.S. technology, goods, or information

Particularly severe violations of religious freedom by foreign government workers

Money laundering

Efforts directed to control or overthrow the Government of the United States by force, violence, or other unlawful means.

Participants in Nazi persecutions or genocide

There are exceptions and waiver possibilities that vary depending on the class of offense listed above. You should consult an attorney for further information on these issues.

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