Mr. T was convicted of possession of a "dangerous drug" in the US and found inadmissible. In a long and complicated case, we strategized with a criminal lawyer about the possibility of vacating his conviction. Upon the motion of the criminal lawyer, the court vacated the conviction and issued a writ of coram nobis. Mr. T pled to a lesser charge, a charge that did not carry a permanent bar. The consulate rescinded the decision and Mr. T was no longer inadmissible.
Complex Visa Cases: Inadmissibility, Waivers, Humanitarian Parole
A USCIS or consular officer may find an individual inadmissible to the US, or there may be a situation where there is no appropriate visa solution but humanitarian reasons warrant entry to the United States. Findings of ineligibility fall into a broad variety of classes, with the most prominent being findings of misrepresentation or fraud; criminal; and visa overstays. The consequences of such findings may be severe.
In the case of misrepresentation, a person may be barred from the United States permanently for a material misrepresentation made in the visa application process. Overstaying authorized visits to the United States can mean the imposition of a 3 or 10 year bar, depending on the time of overstay. Therefore, it is imperative to be honest, scrutinizing, and diligent throughout the visa application process and while in the United States.
If there are emergent situations and a person is unable to obtain a visa, then an application for humanitarian parole may be justified.
What is the first step in dealing with a finding of visa inadmissibility?
It is imperative to understand the reason for such a finding. Often, officers make such a finding, but do not illuminate or disclose the factual reason for the finding. It is necessary to approach that officer or his superior directly, or through a Freedom of Information Act request, to obtain the reason for the finding and any underlying documentation that supports or contradicts the finding. Once this is done, one may formulate a strategy for dealing with the finding.
What is then done?
- Challenge the finding. If you believe that there are legitimate grounds for challenging the findings of the officer, an appeal or request for reconsideration is submitted to that officer or his or her supervisor or to the appropriate administrative or judicial body. Officers make mistakes, may be inexperienced, and are subject to time constraints. Sometimes it is necessary to educate an officer.
For example, an officer found an applicant for an immigrant visa to have a serious medical problem which would entail possible expenditure by American taxpayers. In fact, the applicant’s medical problem was not serious, and only required periodic monitoring. Or an officer who originally made a finding of material misrepresentation and thus permanently barred the individual from the US re-examined and nullified his decision upon presentation of exculpatory evidence.
It should also be kept in mind that questionable “poison pen letters”, “guilt by association” or “secret evidence” often times serve as the basis for these findings.
- Waivers. If the finding is accurate, or the challenge to the finding is not upheld, immigrant and nonimmigrant visa waivers are available. The standards for the granting of a waiver for a non-immigrant visa are relatively liberal: the consulate considers
- the risk of harm to society if the individual is admitted;
- the seriousness of his or her violations;
- the reason that the alien is seeking admission.
In addition, it is necessary to show the non-immigrant intent of the applicant: that he or she will return home after a short visit to the United States. The granting of an immigrant visa waiver is much more limited: it may be granted to the spouse, son, or daughter of a US citizen or permanent resident for certain ineligibilities if extreme hardship to the interested US person can be proven. This is a difficult standard to satisfy.
- Humanitarian Parole. This may be an appropriate option if there is
- a reason why a person is unable to obtain a visa;
- there are medically emergent or humanitarian circumstances which justify permitting the individual to enter the U. S.