A broad range of conduct can lead to inadmissibility to the United States, from seemingly innocuous issues to serious past offenses. Some of these grounds are waivable, allowing the individual to become a permanent resident, and others are not. Three of the most prevalent inadmissibility grounds — unlawful presence, fraud, and certain crimes — are waivable with a showing of “extreme hardship” to certain U.S. citizen or lawful permanent resident (LPR) relatives of the applicant.
Immigrant Inadmissibility for Certain Crimes
Criminal grounds of inadmissibility include:
- admission or conviction of a crime involving moral turpitude;
- admission or conviction of a controlled substance offense;
- conviction of two or more crimes with an aggregate sentence of five years or more;
- reason to believe a person is a drug trafficker; and
- prostitution and commercialized vice.
Individuals can also be found inadmissible for seeking immunity from prosecution and for engaging in severe violations of religious freedom, trafficking, and money laundering.
Crimes for Which Inadmissibility Can be Waived
Section 212(h) of the Immigration and Nationality Act (INA) waives inadmissibility in the Attorney General’s discretion for certain criminal offenses, including:
- crimes involving moral turpitude;
- two or more crimes with an aggregate sentence of 5 years or more;
- criminal activity with the assertion of immunity; and
- possession of 30 grams or less of marijuana.
This jam-packed section of the INA contains multiple discretionary waivers of these criminal offenses. The one most often pursued is set forth in Section 212(h)(1)(B). This section waives the previously listed criminal offenses for applicants who can demonstrate that refusal of admission would result in extreme hardship to a U.S. citizen or Lawful Permanent Resident spouse, parent, son, or daughter.
Section 212(h)(1)(A) waives the criminal offenses described above for applicants whose offenses occurred more than 15 years ago and who can establish they have been rehabilitated and that their admission would not be contrary to the national welfare, safety, or security of the United States.
Immigrant Inadmissibility for Fraud and Willful Misrepresentations
Fraud is another common ground of inadmissibility to the U.S. with a complex definition that requires a careful analysis. Section 212(a)(6)(C)(i) of the INA renders inadmissible a foreign national who
“by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit under this Act.”
Individuals can trigger this ground of inadmissibility by making false statements during an interview or by submitting false information or documentation in an immigration application.
“Fraud” and “Material Misrepresentation” Defined
Fraud and willful misrepresentations are distinct terms of art with very specific meanings in the legal world. The Board of Immigration Appeals (BIA) has determined that for a finding of fraud, the individual must make a false representation of a material fact with the knowledge of its falsity and with the intent to deceive the immigration officer. The immigration officer must have believed the statement and acted upon it.
In contrast, a material misrepresentation has a less stringent standard, only requiring a willful misrepresentation that is relevant to the individual’s visa entitlement. Willful means that the statement was deliberate, voluntary, and made with knowledge of falsity. The statement must also be material. A false statement is material if (1) the individual would have been inadmissible on the true facts or (2) the statement “tends to shut off a line of inquiry” regarding the individual’s eligibility that may have resulted in a determination of inadmissibility.
Lastly, the statement must have been made to a U.S. immigration official in order to obtain an immigration benefit. Lying to a private employer about immigration status does not qualify as fraud pursuant to Section 212(a)(6)(C)(i). However, there are separate grounds of inadmissibility (and removability) for false claims of U.S. citizenship, even in a private context.
When Fraud and Misrepresentation Can be Waived
Section 212(i) provides for a discretionary inadmissibility waiver due to fraud or a material misrepresentation for the spouse, son, or daughter of a U.S. citizen or Lawful Permanent Resident if it is established that the refusal of admission to the foreign national would result in extreme hardship to the citizen or Lawful Permanent Resident spouse or parent.
Immigrant Inadmissibility for Unlawful Presence / Three and Ten Year Bars
Unlawful presence is defined in Section 212(a)(9)(B) of the INA as being present in the United States after the expiration of the authorized period of stay, or being present without having been admitted or paroled.
Section 212(a)(9)(B) renders inadmissible for three years anyone who was unlawfully present after April 1, 1997 for a period of more than 180 days, but less than 1 year, and voluntarily departs the United States prior to the commencement of removal proceedings; this is commonly referred to as the “three year bar.”
If an individual is unlawfully present for a period of 1 year or more after April 1, 1997 and then voluntarily departs or is removed, the person will be inadmissible for ten years; this is commonly referred to as the “ten year bar.”
A number of exceptions and nuances to unlawful presence are detailed in a May 6, 2009 USCIS policy memorandum entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act,” which is now set forth in the USCIS Adjudicator’s Field Manual Chapter 40.9.2.
When Unlawful Presence Can be Waived
Section 212(a)(9)(B)(v) waives inadmissibility due to unlawful presence in the Attorney General’s discretion for the spouse, son, or daughter of a U.S. citizen or Lawful Permanent Resident if it is established that the refusal of admission to the foreign national would result in extreme hardship to the citizen or Lawful Permanent Resident spouse or parent.
If an individual has one year or more of unlawful presence or has been ordered removed from the United States, and that person then enters or attempts to enter the U.S. without being admitted, she is subject to what is called the “permanent bar.” With the exception of certain self-petitioners under the Violence Against Women Act (VAWA), those who trigger this bar must spend 10 years outside of the United States before they are eligible to request permission to reapply to return to the United States through filing a Form I-212.
To speak with an immigration attorney about immigrant waivers and whether a waiver may be available to you contact Grossman Young & Hammond.