DETERMING IMMIGRATION STATUS

There are a number of factors that can impact your legal or immigration status. These include inadmissibility and deportability, which can be triggered by different circumstances. For more on your status and the steps you can take consult with  an attorney at Pagliara Law Group.   

If you have ever been deported, denied a visa or denied entry to the United States you should consult an immigration attorney before trying to return either temporarily or permanently.  If you have any history of the above issues, and believe you may require a waiver, our office can assist you with that process.

The first thing you will need to do is determine if you actually require a waiver for permanent immigration to the United States.  Some issueswill not require a waiver depending on the type of immigrant petition you have available.  On the other hand, some issues can create a lifetime bar to immigration and no waiver is available.   Most issues will be waivable if you can show you are eligible for an exercise of favorable discretion by the U.S. Citizenship and Immigration Services office.  You should always consult an experienced immigration attorney who routinely handles waivers before you begin your process.  That way you will know whether you require a waiver and whether your issue is waivable before you spend time and resources on your immigration application.

If you do require a waiver, you should begin the process well in advance of your intended immigration interview.  It often takes several weeks or even months to gather the documentation required for permanent waiver applications.

U.S. Citizenship and Immigration Service officers have discretion in determining who will be recommended for a waiver.  In some cases you will need to showthat a close relative will suffer extreme hardship if you are not permitted to immigrate to the United States. The type of waiver you require will determine which family member you may use

USCIS officers will consider several factors in determining whether to grant yourwaiver application.  If you are showing extreme hardship to a qualifying relative, officers will review the following:  your relatives’ family ties to the United States, lack of family ties to your home country, the country conditions of your home country, medical conditions of your relative, career and property ties to the United States and other factors that would indicate your relative is not able to leave the United States and relocate to your home country.   You will also need to show that you are a person of good moral character.

There is a formal application process and the USCIS will charge you a fee for processing the application forms and reviewing your supporting documents.  The fees change regularly so you should consult USCIS or our office for current fees.

Processing times for permanent resident waivers vary greatly depending on the consulate or USCIS office that has jurisdiction over your file.

If your waiver is granted and you are otherwise eligible for legal permanent residency status, you will be approved for legal permanent residency status and will not require any further waiver processing or renewals.

Waivers for temporary visitors to the United States have different requirements than waivers for those applying for legal permanent resident status in the United States.  If you require information on waivers for temporary entry to the United States as a tourist, or on a work related visa, please see our information page relating to temporary visa waivers.

DEFINITION OF INADMISSIBILITY

Definition of Inadmissibility

The legal framework for “inadmissibility” is found in section 212(a) of the Immigration and Nationality Act. It applies to two different types of people:

1. People who are outside the United States and are applying for admission – to be allowed into the country – in some status.
2. People who are applying to change their status from within the United States.

For instance, if you’re admitted in an H1B employment-based status, but then marry a U.S. citizen and want to change your status to that of a permanent resident, then the grounds of inadmissibility will apply, even though you’ve already been “admitted” to the U.S.

The potential grounds of inadmissibility are extensive. There are a number of different things that can make you inadmissible. The most common area is criminal offenses, and this is where the phrase “crimes of moral turpitude” comes in to play. You can be inadmissible if you have committed or have admitted to committing the acts which constitute the essential elements of either a crime of moral turpitude or an offense relating to a controlled substance.

Other Types of Inadmissibility Grounds

There are also other types of inadmissibility grounds. For instance, you can be barred from being admitted for health-related grounds, having convictions for two or more offenses, drug trafficking offenses, certain prostitution or human trafficking offenses, money laundering, and other economic grounds such as being a risk of becoming a public charge.

There are also a number of immigration-based grounds of inadmissibility, including people who are present without admission or who failed to attend their removal proceedings, as well as people who have committed fraud or misinterpretation in obtaining a visa.

Finally, there are a number of other grounds that only apply to a few people, such as those who engage in or intend to engage in polygamy, or foreign nationals who have evaded the draft.

Definition of Deportability

Deportability is found in another section of the Immigration and Nationality Act – section 237. It is basically another list of offenses and violations that will render an individual deportable. Like the grounds of inadmissibility under 212(a), it is a long list and, again, the most common reason for being deportable is for criminal violations. There is a lot of overlap between inadmissibility and deportability, and you can be rendered deportable if you were inadmissible at the time that you entered the United States.

Also, if you’re involved in human smuggling, if you’ve obtained any kind of benefit through marriage fraud, or if you’ve committed a number of other immigration violations, you can be rendered deportable.

Many foreign nationals are barred from receiving legal status in the U.S. because they are determined to be “inadmissible.”  Inadmissibility is a legal term meaning that the applicant will not be allowed to physically enter the U.S. if abroad, or, if they are already in the U.S., to adjust their status to that of a legal permanent resident.

Grounds for Inadmissibility

1) Past violation(s) of U.S. immigration law or unlawful presence laws is the most common reason for inadmissibility. If you have been previously removed or deported from the U.S., tried to enter the U.S. and been caught at the border, entered the U.S. without inspection, or overstayed your valid immigration status for 180 days or more, you are inadmissible.  There are many different ways a foreign national can be deemed inadmissible due to these grounds, so if you have any prior violations of immigration law (even if you have never been “caught”), it is extremely important to contact an immigration attorney prior to applying for legal status in the U.S.

2) Criminal Grounds, If an individual has a criminal history, they may be inadmissible.  Offenses considered “crimes involving moral turpitude (see below for more information) can make a person inadmissible, and so can most offenses involving controlled substances.  Not all convictions make a person inadmissible, and the analysis of whether or not a certain offense will become a problem can be quite complicated. If you have a criminal history of any kind, it is advisable to contact an experienced immigration attorney prior to applying for any kind of U.S. immigration benefit.

3) Health-Related Grounds, such as having a communicable disease of public health significance, failing to present documentation of vaccinations against vaccine-preventable diseases (including mumps, measles, rubella, polio, tetanus, diphtheria, hepatitis B, and others), or having a physical or mental disorder that results in behavior that may pose a threat to the community.  The “physical or mental disorder” element of this ground can be a problem for many people. For instance, if you have even a single DUI conviction on your record, or have ever made a statement to a government official that could lead them to believe you are or were a drug user (even if you have no drug-related criminal convictions), your application could be flagged for having the “disorder” of being an alcoholic or drug addict. Often, individuals attempting to enter the U.S. on a visa are required to undergo testing by a U.S.-government approved doctor before their visa will be issued due to this health-related ground. If you are concerned that this ground may apply to you, it would be wise to contact an immigration attorney to advise you during the visa/adjustment of status process.

4) Economic Grounds, meaning that a person is considered “likely to become a public charge.” This applies to individual who the government deems likely to seek access to public benefits such as welfare, food stamps, Medicaid, etc. if they are admitted to the U.S.  Individuals applying for admission or adjustment of status as a legal permanent resident are required to submit an “affidavit of support” along with their application to address this ground. The affidavit of support provides proof to the government that the person petitioning for you (or that person and a co-sponsor) are capable of providing for you financially should you be unable to do so yourself.

5) Fraud or Willful Misrepresentation of a Material Fact in connection with seeking to procure or procuring a visa or any other type of immigration benefit can render a person inadmissible. This includes making an oral misrepresentation to an immigration official, presenting a fraudulent document in an immigration application, or any other form of misrepresentation of the truth while attempting to gain entry or legal status in the USA.

6) Moral grounds, including persons coming to the U.S. planning to practice polygamy.

7) False Claim of U.S. Citizenship, Claiming to be a U.S. citizen when you are not is one of the most serious and difficult-to-overcome grounds of inadmissibility.  One way an individual can subject themselves to this ground is by voting in a state, federal, or local election where U.S. citizenship is required.

8)Security Related Grounds, including espionage, sabotage, illegal activity, terrorist activity, association with terrorist organizations, membership in a totalitarian party (including the communist party), Nazis, persons committing genocide or torture, religious persecutors, etc.  This is one of the most serious grounds of inadmissibility, but is rare in its application.

What options do I have if I’m inadmissible?

In many cases, inadmissible individuals may apply for  WAIVERS  (I-601)

The requirements and  eligibility (see below) will vary depending upon which ground of inadmissibility applies.  The FORMS OF THE WAIVER are extremely fact-specific to each case, and an attorney should be consulted before a family makes a decision on whether or not a waiver should be sought.

The most common types of waivers are as follows:

The WAIVERS OF INADMISSIBILITY are available to different people depending what type of ground of inadmissibility a person is applying for. For instance, if an individual is fighting an inadmissibility application based on a health grounds, they would be eligible only if they are the parent, child, unmarried son or daughter of a US citizen, legal permanent resident, or somebody who has been issued an immigrant visa.

In those cases, as well as the 212 (h) waiver which applies to those who are criminally inadmissible, the applicant needs a qualifying relative. In these particular cases, the qualifying relative will fall into the same category as a qualifying relative who must be a citizen or a resident. Some waivers do not require that the waiver applicant has a qualifying family member but the most common ones do.

As long as the applicant meets the requirements for the specific type of waiver being applied for, there are no limitations on who is eligible. Anyone who meets the standards for the particular waiver in which they are applying will qualify or will be eligible to apply.

Racial, religious, political affiliations, age, or any other kind of membership in a particular social group does not have any bearing on your eligibility.

Minor Applicants

A minor can apply for a waiver, however, this is not as common because typically the grounds of inadmissibility that occur while a person is still considered a minor are not going to be deemed inadmissible. For instance, many people that are convicted of crimes as minors will not be considered to be inadmissible based on the criminal inadmissibility grounds. There are some exceptions to this but it is much less common for the government to be able to prove that the ground of inadmissibility was knowing and willful.

The government  is less likely to charge a minor with being inadmissible but a minor would be eligible for a waiver if they were deemed to be inadmissible.

Important to Know

The first thing is that the waiver applicant needs to be extremely certain about all of the grounds of inadmissibility that they are subject to before moving forward. The second thing is that they need to identify exactly what needs to be proved to be eligible for the waiver. For instance, do you need to show that you have a qualifying relative? Do you need to prove extreme hardship to that qualifying relative? What are the actual requirements that you’re trying to meet?

Finally, the applicant really needs to understand, particularly in cases that involve the showing of extreme hardship to a qualifying relative, is that the hardship needs to be very thoroughly documented. Letters from the applicant and the qualifying family member stating that it is going to be difficult on the family of the individual are not enough to be allowed to enter or gain lawful status.

Documenting Hardship

The applicant has to prove why their case is different and why it really meets the legal standard. Ways to accomplish this include submitting medical evidence or letters from doctors or therapists or mental health professionals that can actually document the hardship that is going to be inflicted on the US citizen relative.

Related to this, another consideration is that the government, in cases where hardships to a U.S. relative is required, does not typically care or takes into consideration the hardship on the immigrant or the intending immigrant.

With this in mind, even if the hardship will more directly affect the immigrant, it is important to show the government the lengths of hardship that will be suffered by the U.S. relative and it is very important to frame the entire application with that focus.

Granted a Waiver Effect on Visa

Being granted a waiver of inadmissibility does not automatically give a green card to the applicant. It depends on what type of status they’re applying for in conjunction with the waiver of inadmissibility. So, if an individual is applying for a waiver of inadmissibility because they want to enter the tourist visa then their tourist visa will be granted. If they are applying for a waiver of inadmissibility to enter on an employment-based visa then they’ll enter on that type of visa.

If an individual is applying for a waiver of inadmissibility in conjunction with the application for adjustment status or a green card, then once they prove that they qualified for this waiver, they must also prove to the government that they are otherwise eligible for admission and need to go through the same process that any other non-inadmissible applicant would have to go through.

So, it’s an additional requirement that is placed upon people who are applying for a status if they’re deemed inadmissible. It is filed in conjunction with the application for admission and the particular type of status that you’re applying for.

The most common Waiver form is filed on form USCIS I-601 and the purpose of this form is to provide a person’s biographical information, identify the grounds of inadmissibility that the individual has been deemed subject or that they believe they are subject to, and present a basic argument for why they qualified for a waiver.

First of all, this form is the most simple part of the application process and is essentially the cover to the actual waiver application. For most cases, especially where the showing of extreme hardship to the qualifying US family member is required, these applications are very expensive; they require thorough documentation of the hardship requirements.

Also, of the positive discretionary factors that warrant a positive grantee’s discretion. The form is really just the cover to the actual waiver so it in no way indicates  that a person is automatically eligible for the waiver.

Different waivers have different legal standards that a person has to meet in order to have them granted but all waivers are discretionary. So, there is always going to be an exercise of discretion by the government and it is always going to require their documentation beyond just the form itself.

Where the Waiver Goes

The process for submitting the I-601 depends on where the individual has been deemed inadmissible, where they’re applying for the waiver, and who is applying for the waiver. For people abroad and applying for an initial entry into the United States, they will be submitting the waiver at the consulate or embassy abroad and it will be adjudicated there.

The individuals who are within the United States and are applying for a person’s adjustment status or for the provisional waiver or are in front of an immigration judge, they will be submitting it either directly with USCIS or they’ll be submitting it with an immigration judge who will be adjudicating it in court.

After a Denial

If you’re deemed inadmissible and you submit a waiver and the waiver is denied, a person is absolutely barred from entering the United States or from obtaining the type of status that they were hoping to obtain from within the Unites States.

A person is allowed to re-file in certain situations, depending on where their case is being adjudicated. If the applicant is abroad and has submitted a waiver that was denied, they can re-submit. However, it is not advisable to do so unless there has been a material change in circumstances in their case because it is unlikely that the decision will be different based on the same information that was previously submitted.

An individual can re-file if they are abroad, however, if they are in removal proceedings and the waiver has been denied by the immigration judge, they will not be allowed to re-file unless there are material changes in the situation which will allow for the case to be reopened or would allowed to be re-adjudicated for some extenuating reason.

Important to Know

The form itself is very straight forward. Applicants just need to be very careful that they correctly identify the reasons that they’re applying for inadmissibility and make sure that they are actually eligible. The form itself is really the simple part – the supporting documentation in most cases is what will determine whether or not the application is approved or denied. Additionally, there is a $585 filing fee.

Expediting the Process

There is basically no way of speeding up the process. The process for the waiver of inadmissibility to be adjudicated will depend on where it is filed. If it’s filed in front of the immigration court, it’s going to depend on the calendar of the court and how long it will take for you to receive an individual hearing in front of an immigration judge.

If the individual is filing a provisional waiver in front of USCIS on form I-601A, then those depend on the current adjudication times at the time it was filed. Right now, they’re taking about 10 months.

If the individual is filing for a waiver of inadmissibility from abroad then it will depend on the adjudication times of that particular consulate that the individual is applying for. Therefore, we cannot state a particular timeframe that will be accurate for the different types of waivers.

It really depends on where the applicant is and what type of waiver they’re applying for.

As discussed above, one of the  grounds of inadmissibility is that you committed a crime of Moral Turpitutde.

A crime of moral turpitude is a category of criminal offense, and as such, it can impact your immigration status.  It has a frustratingly vague definition but it’s broadly defined as an act that is depraved or immoral, or a violation of the basic duties owed to your fellow man. It can also be defined as a reprehensible act and you generally have to have a level of intent of at least recklessness to qualify.

Because of the broad definition, the crimes that will constitute a crime of moral turpitude will differ from state to state. Therefore, it’s important to evaluate your offense to see whether you might fall into this category. Sometimes it’s not an easy determination. It’s something that an immigration attorney might have to look to prior case law to determine the answer to.

Examples of a Crime of Moral Turpitude

In general, most offenses that involve an intent to commit to a fraud, a theft, or an intent to inflict bodily harm on someone will usually qualify. There are also a number of other reckless or malicious acts that can qualify as crimes of moral turpitude, as well as crimes that involve sexual assault or misconduct. There is a long list, so it’s best to consult an attorney about your specific conviction.

Why Are Crimes of Moral Turpitude Distinguished?

They’re distinguished from other crimes because they’re discussed in the Immigration and Nationality Act as types of offenses that the government believes should bar you from receiving immigration status in the United States. They matter in immigration proceedings because they make you inadmissible. So, they are relevant to people who are applying for status for the first time in the United States, or people who are applying to change or “adjust” their status.

Common Myths About Crime of Moral Turpitude

A lot of times people think that crimes of moral turpitude should be obvious to designate as such. They should be crimes that sound really bad on paper or sound like offenses that would really present a danger to the community. But often the crimes that are actually categorized as crimes of moral turpitude are somewhat surprising. You wouldn’t logically think that they would carry such intense consequences.

An example of this could be like writing a bad check. That could be construed by immigration law to be a fraudulent offense and most offenses that involve fraud are considered to be crimes of moral turpitude. So, while certain assaults may not be considered crimes of moral turpitude, something that is more administrative in nature or intuitively less serious like writing a bad check might actually be considered a crime of moral turpitude and carry more serious consequences. 

A big reason people have this misconception is because the term itself sounds like it’s describing something that is simply reprehensible. Couple this with the fact that the actual definition that lawyers have to work with is very broad, very vague and has been extensively litigated throughout the years, makes it a really  difficult area of immigration law. So there really not a clear answer about what a crime of moral turpitude is, and it is a category of crimes that is constantly evolving with case law.