Chapter 3 Can You Enter or Stay in the U.s. at All?

• Library: U.S. Immigration Made Easy (Nolo) (2023 Ed.)

CHAPTER 3 Can You Enter or Stay in the U.S. at All?

A. Particularly Troublesome Grounds of Inadmissibility

1. Likely to Become a Public Charge (Receive Government Assistance)....33
2. Having Committed Crimes or Security Violations
3. Having Spent Too Much Time in the U.S. Unlawfully
4. Can You Get Around the Time Bars by Adjusting Status?
5. Repeat Violators: The Permanent Bar
6. Having Violated Immigration Laws or Used Fraud

B. Avoiding or Reversing an Inadmissibility Finding

1. Curing the Condition That Makes You Inadmissible
2. Proving That You're Not Really Inadmissible
3. Proving That a Finding of Inadmissibility Is Factually Incorrect
4. Applying for a Waiver

Let's say you've found a category of visa or green card that you think you're eligible for—for example, a college has accepted you and you're hoping to get a student visa, or your mother has become a U.S. citizen and you're hoping to get a green card through her. The sad truth is that the U.S. immigration authorities still have the power to tell you "no" and deny your visa or green card if they decide you're "inadmissible."

But what is it to be inadmissible? It means that you have a condition, characteristic, or personal history that the U.S. government has decided is undesirable or would threaten the health and safety of people living in the United States. For example, if someone applying to immigrate is infected with tuberculosis, or once committed a violent crime, allowing that person into the United States might cause harm to U.S. citizens and residents.

The U.S. government keeps a list of what can make a person inadmissible. (See I.N.A. § 212, 8 U.S.C. § 1182.) The list includes affliction with various physical and mental disorders, commission of crimes, participation in terrorist or subversive activity, likelihood of needing welfare or other public assistance (becoming a "public charge"), and more. If you're found to match one of the items on this list, then you won't ordinarily be allowed to enter the United States. Or, if you've already entered, you won't be allowed to receive a green card.

TIP

The government is stricter with green card applications than with applications for temporary visas. Although technically, your application for almost any temporary immigration benefit (such as a student visa) can be denied based on inadmissibility, in reality, inadmissibility is checked less closely when it comes to nonimmigrant applications, and certain grounds don't apply to certain visas. Also, a waiver of a ground of inadmissibility is easier to get for a nonimmigrant visa—the law doesn't attach the same tough waiver requirements as it does for a green card application. (See I.N.A. § 212(d)(3), 8 U.S.C. § 1182(d)(3).)

You might be wondering how the U.S. government finds out that you're inadmissible. All green card and visa application forms ask questions designed to find out whether any grounds of inadmissibility apply in the case. Although some people obviously give false answers, those who are caught lying will have their immigration application denied for sure, and probably lose their chance to apply for any other visa or green card in the future. What's more, many of the applications—particularly those for green cards, as opposed to temporary visas—require you to supply your fingerprints or police reports as well as the results of medical examinations and other documents (financial and more). If the results show that you have certain crimes on your record or communicable medical conditions, you will be found inadmissible.

CAUTION

Temporary travel bans are a separate concern. Even if you're not individually inadmissible, it's possible you will be affected by travel restrictions based on health or security issues, possibly applicable to all travelers from your country. See the Nolo website for updates on such travel bans.

Falling into one of the categories of inadmissibility doesn't mean you are absolutely barred from getting a green card or otherwise entering the United States. Some—though not all—grounds of inadmissibility may be legally excused or, in lawyer-speak, waived. But applying for a waiver is complicated, and you should consult with an attorney if you think you'll need one.

Below is a chart summarizing the grounds of inadmissibility, whether or not a waiver is available, and the special conditions you must meet in order to get a waiver. Unless otherwise indicated, the waivers described on the chart apply to people applying for green cards, not nonimmigrant visas. If you're applying for a nonimmigrant visa, you can request a waiver of many (but not all) of the grounds of inadmissibility if the consular officer recommends that you receive the waiver and CBP approves it. (See I.N.A. § 212(d)(3), 8 U.S.C. § 1182(d)(3).) If you already have the visa but have been told you are inadmissible, you apply for the waiver directly with CBP. In deciding whether to recommend or approve your waiver, the officials will consider and balance three things:

• the risk of harm to society if you are allowed to enter the U.S.
• the seriousness of your criminal or immigration violation or other ground of inadmissibility, and
• your reason for wanting to come to the United States.

A. Particularly Troublesome Grounds of Inadmissibility

Below is a discussion of some of the grounds that create the most trouble for people planning to either immigrate or obtain nonimmigrant visas.

1. Likely to Become a Public Charge (Receive Government Assistance)

One of the leading reasons for green card denials is a finding that the immigrant is "likely to become a public charge" (receive welfare or need-based government assistance in the U.S.). In fact, the law requires almost all visa applicants, whether coming for a temporary or a permanent stay, to prove either that they will be self-supporting or that someone else will be responsible for supporting them.

Summary of Grounds of Inadmissibility
Ground of Inadmissibility	Waiver Available	Conditions of Waiver
Health Problems
Persons with communicable diseases of public health significance, in particular tuberculosis.	Yes	Waiver available to the spouse or the unmarried son or daughter or the unmarried minor lawfully adopted child of a U.S. citizen or permanent resident, or of a foreign national who has been issued an immigrant visa; or to someone who has a son or daughter who is a U.S. citizen, a permanent resident, or an alien issued an immigrant visa, upon compliance with USCIS's terms and regulations.
Persons with physical or mental disorders that threaten their own safety or the property, welfare, or safety of others.	Yes	Special conditions required by USCIS, at its discretion.
Drug abusers or addicts.	No	(But doesn't necessarily include single-use experimentation; it depends on the drug.)
Persons who fail to show that they have been vaccinated against certain vaccine-preventable diseases (with COVID-19 the most recently added one).	Yes	Applicants must show either that they subsequently received the vaccine; that the vaccine is medically inappropriate as certified by a civil surgeon; or that having any vaccines administered is contrary to their religious beliefs or moral convictions.
Criminal and Related Violations
Persons who have committed crimes involving moral turpitude.	Yes	Waivers are not available for commission of such crimes as attempted murder or conspiracy to commit murder, or murder, torture, or drug crimes. Also, no waivers are available to persons previously admitted as permanent residents, if they have been convicted of aggravated felony since such admission or if they have fewer than seven years of lawful continuous residence before removal proceedings were initiated against them. Waivers for all other offenses are available only if the applicant is a spouse, parent, or child of a U.S. citizen or green card holder; or the only criminal activity was prostitution; or the actions occurred more than 15 years before the application for a visa or green card is filed and the applicant shows that they have rehabilitated and are not a threat to U.S. security.

Ground of Inadmissibility	Waiver Available	Conditions of Waiver
Persons with two or more criminal convictions.	Yes	Same as above.
Prostitutes or procurers of prostitutes.	Yes	Same as above.
Diplomats or others involved in serious criminal activity who have received immunity from prosecution.	Yes	Same as above.
Money launderers.	No
Drug offenders.	No	Except for simple possession of less than 30 grams of marijuana. There can also be an exception made for simple possession or use by juvenile offenders.
Drug traffickers.	No
Immediate family members of drug traffickers who knowingly benefited from the illicit money within the last five years.	No	But note that the problem "washes out" after five years.
National Security and Related Violations
Spies, governmental saboteurs, or violators of export or technology transfer laws.	No
Persons intending to overthrow the U.S. government.	No
Persons intending to engage in unlawful activity.	No
Terrorists and members or representatives of foreign terrorist organizations.	No
Persons whose entry would have adverse consequences for U.S. foreign policy, unless the applicant is an official of a foreign government, or the applicant's activities or beliefs would normally be lawful under the U.S. constitution.	No

Ground of Inadmissibility	Waiver Available	Conditions of Waiver
Voluntary members of totalitarian parties.	Yes	An exception is made if the membership was involuntary, or is or was when the applicant was under 16 years old, by operation of law, or for purposes of obtaining employment, food rations, or other "essentials" of living. An exception is also possible for past membership if the...