The U.S. government keeps a list of conditions or characteristics which it has decided are undesirable or pose a threat to the health and safety of others. People who have these conditions are not allowed to enter the country. These people are called inadmissible. Inadmissibility creates problems in green card applications. Technically, those who want nonimmigrant visas can also be inadmissible. In reality, inadmissibility is often not as closely checked in nonimmigrant applications.
There are many reasons why someone may be unwanted in the U.S. Each of these reasons represents a different category of inadmissibility. The list of such grounds includes affliction with various physical and mental disorders, commission of crimes and participation in terrorist or subversive activity.
Just because you fall into one of the categories of inadmissibility does not mean you are absolutely barred from getting a green card or otherwise entering the U.S. Some grounds of inadmissibility may be legally excused or waived. Others may not. But determining how to appeal for a waiver is complicated and you should consult with an attorney if you are in this situation. Recent rulings by the Board of Immigration Appeals make it difficult to clear a crime off your record for immigration purposes, even if, under state law, the record of criminal conviction has been “expunged” or removed. For more detail, see I.N.A § 212, 8 U.S.C. §1182.
You may be judged inadmissible at any time after you have filed an application for a green card, nonimmigrant visa or status. If you are found inadmissible, your application will be denied. Even if you manage to hide your inadmissibility long enough to receive a green card or visa and be admitted into the U.S., if the problem is ever discovered later, you can be deported. There are four ways to overcome a finding of inadmissibility:
• In the case of physical or mental illness only, you may be able to correct the condition. Some criminal grounds of inadmissibility can be removed through a court proceeding that sets aside the criminal conviction.
• You can prove that you really don’t fall into the category of inadmissibility the USCIS believes you do.
• You can prove that the accusations of inadmissibility against you are false.
• You can apply for a waiver of inadmissibility.
Correcting Grounds of Inadmissibility
If you have had a physical or mental illness that is a ground of inadmissibility and you have been cured of the condition by the time you submit your green card application, you will no longer be considered inadmissible for that reason. If the condition is not cured by the time you apply, you may still be eligible for a waiver of inadmissibility.
Proving Inadmissibility Does Not Apply
Proving inadmissibility does not apply in your case is a method used mainly to overcome criminal and ideological grounds of inadmissibility. When dealing with criminal grounds of inadmissibility, it is very important to consider both the type of crime committed and the nature of the punishment to see whether your criminal activity really constitutes a ground of inadmissibility. For example, with some criminal activity, only actual convictions are grounds of inadmissibility. If you have been charged with a crime and the charges were then dropped, you may not be inadmissible.
Another example involves crimes of moral turpitude. Crimes of moral turpitude are those showing dishonesty or basically immoral conduct. Commission of acts that constitute a crime of moral turpitude can be a ground of inadmissibility, even with no conviction. Crimes with no element of moral turpitude, however, are often not considered grounds of inadmissibility. Laws differ from state to state on which crimes are considered to involve moral turpitude and which are not. Still other factors that may help you are the brevity of any prison terms, how long ago the crime was committed, the number of convictions in your background, conditions of plea bargaining and available pardons. Sometimes a conviction can be “vacated” if you can show it was unlawfully obtained or you were not advised of its immigration consequences, though under recent case law, the USCIS may refuse to recognize this.
As you can see, proving that a criminal ground of inadmissibility does not apply in your case is a complicated business. You need to have a firm grasp not only of immigration law, but the technicalities of criminal law as well. If you have a criminal problem in your past, you may be able to get a green card, but not without the help of an experienced immigration lawyer.
Proving a Finding of Inadmissibility Is Factually Incorrect
When your green card or nonimmigrant visa application is denied because you are found inadmissible, you can try to prove that the finding of inadmissibility is factually incorrect. For example, if a USCIS medical examination shows that you have certain medical problems, you can present reports from other doctors stating that the first diagnosis was wrong and that you are free of the problem condition. If you are accused of lying on a visa application, you can present evidence proving you told the truth, or that any false statements were made unintentionally.
Atty. Galstyan, an experienced immigration attorney, prepares the entire package necessary for your waivers whether filed in the U.S or overseas. During our initial consultation, we will first get all the facts, determine what the most effective way to present your case to the consular officer or the USCIS would be and as such prepare a case plan for you. We also assist our client’s and guide them through the entire process involved with the waivers. Please contact us for your FREE, no obligation consultation with Mr. Galstyan, an experienced immigration attorney.