Filing a nonimmigrant waiver application unnecessarily could have the unintended consequence of preventing someone from ever being eligible for permanent residency.
Section 212 of the Immigration and Nationality Act (“INA”) enumerates various grounds of inadmissibility to the United States. Those grounds are broken up into public health concerns, criminal related grounds, foreign policy related grounds, those likely to become a public charge, those requiring labor certification, and those guilty of certain types of misrepresentation, those previously removed from the United States, and various other grounds. The criminal related grounds create perhaps the most confusion.
Not every criminal conviction will give rise to a ground of inadmissibility. Only those with the following types of conviction records are inadmissible:
- Those convicted of a “crime involving moral turpitude,” or “CIMT.” This type of crime is defined by case law as being determined by community standards, but generally speaking involves any crimes of which fraud or theft is an essential element, as well as other crimes generally agreed to shock the public's conscience, such as child sex abuse crimes, murder, and the like. There are exceptions to this ground of inadmissibility, including:
- Convictions for purely political offenses are not considered CIMTs;
- The alien was under the age of 18 at the time he committed the crime and more than 5 years have passed between commission of the offense and the alien's filing of a visa application or application for admission to the United States;
- The “petty offense” exception- Applies when the maximum possible prison sentence for the offense did not exceed one year and the alien was not sentenced to a term of imprisonment in excess of 6 months.
- Those convicted of any crimes related to a controlled substance. In addition to making those with drug offenses inadmissible, individuals who have been convicted of possessing paraphernalia have also been found inadmissible to the U.S. on this ground.
- Multiple criminal convictions. Any alien convicted of 2 or more offenses, for which the aggregate sentences to confinement were 5 years or more.
- Controlled substance traffickers. This ground does not require an actual conviction but makes inadmissible anyone whom the U.S. Attorney General knows or has reason to believe “is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity.” INA § 212(a)(2)(C).
- Prostitution and commercialized vice. Any alien who is coming to the U.S. to engage in prostitution, the procurement of prostitutes, or any other commercialized vice, or has engaged in prostitution or procurement within 10 years of the date of application for a visa, admission, or adjustment of status.
- Those involved in serious criminal activity who have asserted immunity from prosecution. Any alien who has a serious criminal offense in the U.S., for whom immunity from criminal jurisdiction was exercised with respect to that offense, who as a consequence of the offense and exercise of immunity has departed from the United States, and who has not subsequently submitted fully to the jurisdiction of the court in the United States.
- Foreign government officials who have committed particularly severe violations of religious freedom.
- Significant traffickers in persons. Applies to any alien known or believed to be involved in such trafficking; does not require actual conviction to give rise to ground of inadmissibility.
- Money laundering. Applies to any alien known or believed to be involved in money laundering or the aiding, abetting, assisting or conspiring to launder money. Does not require criminal conviction.
In practice, the criminal related grounds of inadmissibility that we most often see are those numbered 1-3 above. It is worth noting that an alien's admissibility hangs on the language of the criminal statute under which he was convicted. Only those convicted under statutes clearly describing a CIMT or drug related offense give rise to a finding of inadmissibility under the relevant sections above.
The burden of proof always rests with the applicant for a visa or admission, thus those who have a criminal conviction or multiple convictions, should present original proof of their convictions in the form of court sentencing documents at the time of the visa interview or application for admission to the U.S. Often, government officers will be able to see that an individual has a record of conviction but will not be able to see the particulars of the offense. When this occurs, the alien will not be granted an immigration benefit until he can prove that his conviction does not make him inadmissible.
In some cases, simply carrying the conviction records will provide sufficient information for the officer to determine whether the alien is inadmissible. In unclear cases, it is best to hire an attorney to prepare a memorandum of law explaining why the office does not make the alien inadmissible (if possible).
There is a general nonimmigrant waiver which is available to waive most grounds of inadmissibility. However, before filing a waiver application, it is important to be sure that you are actually inadmissible from the U.S. The grounds of inadmissibility are nuanced and we have seen many cases in which a CBP officer concluded that an individual was inadmissible, only to discover that the person actually was not inadmissible. We have worked with ports of entry to resolve such issues rather than filing a nonimmigrant waiver since doing so is essentially conceding to one's inadmissibility. While it may be expedient to do so for the present, the grounds available to waive inadmissibility to the U.S. as an immigrant (permanent resident) are far more limited. Thus filing a nonimmigrant waiver application unnecessarily could have the unintended consequence of preventing someone from ever being eligible for permanent residency.