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 The consulate rescinded the decision and Mr.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.
Reasons for Inadmissibility
There are a variety of reasons why a person might be deemed inadmissible to enter the US. The most common grounds for inadmissibility are:
- prior history of criminal activities;
- commission of fraud in obtaining a US visa;
- prior periods of unlawful presence in the US longer than 6 months, subjecting applicants to a mandatory 3 to 10 year bar from entering the US.
Except for individuals with inadmissibility findings related to security and other narrow areas, all other individuals barred from the United States can apply for a nonimmigrant waiver of inadmissibility. However, each case is unique and often requires a detailed analysis in order to determine the factual basis of inadmissibility, whether the consular decision was correct, the availability of a waiver, and the likelihood of a successful waiver application.
Who Can Apply?
An applicant for any type of nonimmigrant visa, such as B-2, F-1, H-1B, J-1, or L-1 who has been found inadmissible, can apply for a waiver of inadmissibility.
What is the Process?
A nonimmigrant waiver can be applied for at a US consulate in conjunction with a nonimmigrant visa application — no specific form is required. If the consulate approves the application, it forwards its recommendation to the Department of Homeland Security, which has the final say on these applications. If the consulate denies the application, the applicant may request the Department of State to review the application. If it denies the application, the case is closed. If it recommends approval, it forwards the application to DHS for its final determination. In general, the entire process may be completed in 1–2 months.
The standards for granting a waiver for a nonimmigrant visa are relatively liberal: the consulate and DHS consider
- the risk of harm to society if the individual is admitted;
- the seriousness of his or her violation;
- the reason that the alien is seeking admission;
- the recency of the violation.
In addition, except for H-1B and L visa applicants, it is necessary for the applicant to show that he/she does not intend to immigrate. This can be done by demonstrating the applicant’s ties to his or her homeland and affirming that he or she will return home after only a temporary visit to the United States.
How Does W&A Help?
Before applying for a waiver, it is imperative to understand the reason for a finding of inadmissibility and whether or not the finding is correct. If it is erroneous, then the finding should be challenged by requesting reconsideration and presenting additional evidence. If the finding is correct, then the above-listed standards must be analyzed and convincing evidence of rehabilitation should be prepared. At White & Associates, we can formulate a strategy for challenging a finding if appropriate, or representing your interests in preparing the nonimmigrant waiver application. Please feel free to contact us so that we may be able to assess your case.