Inadmissibility Waivers

If a foreigner is deemed inadmissible to the United States, they cannot enter the country unless they obtain an Inadmissibility Waiver. Inadmissibility is different from removal in that with inadmissibility, the alien is barred from initially entering the U.S. On the other hand, removal (deportation) occurs after the person has already entered the country and is denied the right to remain here.

An Inadmissibility Waiver allows some foreign citizens to enter into the United States even though they would otherwise be denied entry. Also called “Waiver for Grounds of Inadmissibility,” the waiver only applies to certain categories of applicants.

What Are the Grounds for Inadmissibility?

An alien will be denied entry into the U.S. based on “grounds of inadmissibility”. These are factors based on the person’s background and their purpose for entering the U.S. An alien can be denied admissibility on multiple different grounds, including the following below.

Health-related grounds: An alien will not be allowed to enter the country if they are infected with certain communicable diseases such as:

• Active tuberculosis
• Infectious stage leprosy
• Infectious stage syphilis
• Gonorrhea
• Chancroid (a venereal disease characterized by open genital sores)
• Granuloma inguinale (a venereal infection characterized by genital ulcers)
• Lymphogranuloma venereum (chlamydia infection)
• Any quarantinable diseases designated by Presidential Executive order

(Note: HIV is no longer on the list)

Criminal grounds: There are criminal grounds that will prevent an alien from being allowed to enter the U.S. Aliens may not be admitted if they have been convicted of, or admit committing, any felony-level “crime of moral turpitude.” This means conduct that is inherently ”base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.”

Examples include murder, rape, arson, robbery, theft, and fraud. (There is an exception for offenses that were committed before the alien turned 18 years old and took place more than 5 years before the date of the alien’s intended entry into the U.S. There is another exception for petty offenses: crimes where the maximum penalty was one year in jail, and the alien was not sentenced to more than 6 months’ jail time.)

Aliens are also inadmissible if they have been convicted of or acknowledge they have committed more than one crime, regardless of whether they were “crimes of moral turpitude” and regardless of whether they were part of a single scheme of conduct or not.

Other crimes: aliens are also inadmissible if they have committed a felony-level crime related to the sale of drugs (including aiding someone else in the trafficking of drugs). They are also inadmissible if they have engaged in prostitution within the last 10 years, or have participated in or supported human trafficking or money laundering.

• Economic grounds: A person may not be admitted if they do not have enough money to support themself, and thus it is expected they would become dependent on government subsidies such as welfare. This provision of the law bars persons who “by reason of poverty, insanity, disease or disability would become a charge upon the public.” Congress mandates that the following factors be taken into account: (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills.
• Immigration-related grounds: Someone who presents themself at a border without having the documentation necessary to obtain some kind of visa becomes inadmissible. This includes those who have used a falsified document – they are banned for life. This applies also to those who have been denied entry during a past attempt to get into the country, and to those who have tried or succeeded at getting into the U.S. without documentation (i.e. an illegal alien) as well as to those who have tried or succeeded in smuggling someone into the country.
• Miscellaneous grounds: This includes polygamy, international child abductors, those who have committed certain voting crimes, those who would be ineligible for U.S. citizenship if they ever applied, and foreigners who evaded the draft.

Which Inadmissibility Grounds Do Waivers Apply to?

As mentioned, it is sometimes possible to obtain a waiver of inadmissibility. Waivers of inadmissibility can only be requested for the following grounds:

• Failing to present the required documents (passports, green cards, visas, etc.)
• Unlawful presence in the United States
• Prior inadmissibility if filed under Temporary Protected Status
• Immigration fraud
• Health-related factors (such as certain communicable diseases)
• Criminal records involving moral turpitude
• Smuggling or human trafficking
• In some instances, prior removal or deportation

Inadmissibility waivers are NOT available if any of the following inadmissibility factors are present:

• Certain criminal charges involving drug and human trafficking. This includes being the spouse or child of a drug or human trafficker if the alien obtained financial benefit from the trafficking and knew or should have known that the money came from trafficking
• A history of drug abuse or drug addiction
• Possibility that the applicant will become a “public charge” (i.e., in jail or on welfare status)
• Prior history of being a spy or belonging to a totalitarian regime (such as the Nazi party), if they are deemed a threat to national security
• Foreign government officials who have committed severe violations of religious freedom

How is Eligibility for an Inadmissibility Waiver Determined?

Eligibility for a waiver of admission depends on several factors. In general, the alien and their lawyer must prove that granting a waiver would be more fair than denying the waiver.

When immigration authorities review waiver applications, they consider the following factors, among others:

• What are the risks to the public if a waiver is granted?
• Will the waiver serve some humanitarian purpose?
• Would the waiver be in the public interest?
• Would the waiver help maintain family unity?
• Has the alien been rehabilitated?

What Types of Documents are Needed When Filing for an Admissibility Waiver?

The applicant will usually be required to submit several documents in connection with the waiver, including but not limited to:

• Police records from any country where the alien has been convicted of a crime
• Copies of court records and evidence of convictions from any applicable country
• Court records proving that the alien has completed any required jail time, as well as any other stipulations from the judge (e.g. a rehabilitation program)
• Evidence proving that the waiver would not endanger national security
• Evidence of completion of court requirements for crimes, such as time in jail and court-ordered rehabilitation
• Evidence of any claimed hardships that would occur if the waiver were to be denied
• Financial documents that demonstrate that the alien will not become a public charge
• Medical reports indicating the alien’s good health

What if My Application for an Admissibility Waiver is Denied?

If your waiver application is denied, it’s not the end of the story. You may be able to apply for entry at a later date, typically after a specified waiting period.

Note that denials of waiver requests cannot be appealed, since they are already a form of appeal after admission is denied. However, be sure to inform authorities if any errors or misunderstandings have been made in the process of applying.

Do I Need a Lawyer for Help With an Inadmissibility Waiver?

Requesting a waiver for grounds of inadmissibility can be a complex process. It will be quite helpful to you if there is someone to guide you through the procedures. You only get one shot per year or more at getting a waiver of inadmissibility – it’s important that it be done thoroughly and correctly the first time.

Contact a qualified immigration attorney to help you with all the necessary documents and requirements.