In this piece we discuss briefly reasons why a person might have difficulty securing a visa to enter the US. Whether you’re a tourist or a business person, you don’t want to find out too late that you’re inadmissible to the US because of some past transgression. Imagine finding out at the last minute that you can’t take a trip with your family or can’t attend a crucial business meeting. It can result in embarrassment when you have to confess past sins to your employer or family, and that’s before you consider the loss of potential US business or loss of work promotion opportunities, not to mention costly cancelled trips.
The good news is that usually none of this has to happen. Most grounds of inadmissibility can be waived, meaning overcome or forgiven, but the important thing is to deal with it and to not put your head in the sand because inadmissibility grounds at the very least will result in considerable delays with visa applications.
Broadly speaking, here’s what you need to know.
The only inadmissibility grounds that cannot be overcome by the relevant waiver (section 212 (d) (3) of Immigration and Nationality Act) generally relate to foreign policy considerations and participation in Nazi persecutions. A high profile case on foreign policy considerations concerned Gerry Adams when he was found inadmissible for refusing to renounce violence in the past. Of course he is now an Irish politician and had been granted US visas on several occasions.
On pro-Nazi sentiments, an interesting case is that of Kurt Waldheim, Austrian diplomat and politician, UN official and Prime Minister of Austria from 1986 – 1992. Both he and his wife were found inadmissible because of pro-Nazi sentiments during WWII.
Most people with skeletons in the closet are likely to be concerned either with criminal convictions or past immigration violations, including fraud or misrepresentation. Regarding criminal convictions, persons who have been convicted of ‘crimes involving moral turpitude’ (CIMT) or drug related offenses are inadmissible. CIMTs arise from conduct which is “base, vile or depraved” and include but are not limited to: murder, rape, arson, robbery, larceny/theft, fraud, drug trafficking, prostitution, human trafficking, money laundering. The Board of Immigration Appeals has set forth criteria to be evaluated in making a discretionary determination whether to approve or deny a CIMT waiver:
- The risk of harm to society if the applicant is admitted;
- The seriousness of the applicant’s prior criminal law or immigration law violations, if any; and
- The nature of the applicant’s reason for seeking entry.
The Attorney General has discretion and won’t easily exercise it in favour of cases involving violence or serious crime.
An exception is made for petty offenses where the maximum penalty imposable is 1 year and the applicant, if convicted, served no more than 6 months. Young offenders under 18 are immune but they must wait 5 years before applying for admission to the US.
With regard to immigration violations, foreign nationals who have overstayed by 6 months or more are barred from entering the US for 3 years; those who have overstayed by 1 year or more are barred for 10 years.
It’s really important to note that anyone who seeks a US visa or admission to the US by fraud or misrepresentation is barred for life. A waiver may be available in some situations but generally, the US DOS has zero tolerance for fraud/misrepresentation.
Nationals of about 38 countries currently (http://ow.ly/Ptowu) are eligible to use the visa waiver program for visits to the US of up to 90 days for tourism or business. Many people do not understand what’s permitted when traveling to the US as a visitor (I’ve written about this topic elsewhere (http://ow.ly/PtoNF)) but every applicant is required to register online (ESTA) and answer whether you have ever been arrested or convicted of a crime. Many people tick ‘no’ when the true answer is ‘yes’ and only deal with the reality when they require a visa for work or business travel and have no option but to tell the truth. Lying to an immigration official is never an option. It is best to do the right thing from the outset; ticking ‘yes’ means you won’t be authorized to use ESTA but will be informed that you need to apply for a visa at a US embassy. It’s not the end of the world; an application for a temporary visa, often B-1/2 visitor visa is required and the waiver of inadmissibility will be processed in tandem. You’ll be required to produce the police and court records, including the court discharge which shows how the matter was disposed of. It’s also a good idea to obtain a police certificate to show you don’t have any criminal record in your own country. All going well, you will receive a multiple entry visitor visa but of course each case will turn on its own circumstances. It will generally take time to obtain a visa in these circumstances however, weeks or months, depending on the gravity of the offense. An advisory opinion must be sought from Washington in many cases, and security checks must be run in all cases so it’s advisable to apply well in advance of intended travel dates.
There are other grounds of inadmissibility; examples include health-related grounds (communicable diseases though HIV has been removed from the list); economic grounds (if you’re liable to become a charge on the state); intending immigrants – this is a common ground of inadmissibility and applies when a person is deemed to be entering the US with the intent to remain permanently when they don’t have the requisite authorization.
The bottom line is that most offenses can be waived. If you’re concerned about a potential skeleton in your closet, seek advice and take action before you’re under the cosh.