Overcome Inabmissibility

Caruso-Law_Icon-30-admissibility-CBPForm I-192, Nonimmigrant Waiver

Foreign Nationals may be inadmissible to the U.S. as a result of criminality, immigration violations and/or health reasons. Inadmissible Foreign Nationals seeking to enter the U.S. for non-immigrant purposes, may apply for a waiver to overcome their inadmissibility pursuant to INA § 212(d)(3)(A)(ii) – an I-192 waiver application. The granting of a Waiver is based upon the exercise of discretion that involves a balancing of the negative and positive factors.

I-192 Factors

When submitting an I-192 application, an applicant should present as many positive factors as possible to overcome any negative aspects of their inadmissibility. The BIA (Board of Immigration Appeals) in Matter of Hranka, outlined three factors to consider in deciding whether or not to grant an I-192 Waiver application as follows:

  1. The risk of harm to society if the applicant is admitted;
  2. The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any; and
  3. Nature of the applicant’s reasons for wishing to enter the United States.

Waiver Processing

The ARO (Admissibility Review Office) is taking six (6) to eight (8) months to adjudicate applications. In cases of emergency, where the Foreign National wishes to enter the U.S. while their I-192 Application is pending or has not been filed, and where there are compelling circumstances surrounding the Foreign National’s need to enter the U.S., a properly prepared application for parole to enter the U.S. may be successful.

Depending on the reasons for the Foreign National’s inadmissibility, they may require waivers for the rest of their life or may only require waivers for a few years (e.g. until an unlawful presence bar expires).

 Canadians and U.S. Waivers

A Canadian with a criminal record, regardless of how long ago the offence occurred, may be refused U.S. entry. Additionally, and contrary to Canadian immigration regulations and enforcement, if a Canadian has received a suspended sentence, conditional sentence or has been pardoned for an offence to which they have plead to the acts constituting the criminal offence, they may be found to be inadmissible to the U.S.

As of 2010, the U.S Department of Homeland Security’s Customs and Border Protection (CBP) has full access to the Canadian criminal databases including APIS and CPIC (as maintained by the RCMP). Subsequently Canadians with any criminal conviction dating to the 1960s can find themselves inadmissible to the USA.

Attempting Entry knowing your inadmissibility

A Foreign National inadmissible to the U.S. attempting entry to the U.S. may be subject to any and combinations of the following:

  1. Detention
  2. Deportation
  3. Expedited Removal
  4. Confiscation of their vehicle
  5. Payment for one-way transportation to return to their country of origin

Crimes Resulting in Inadmissibility

Generally, crimes causing U.S. inadmissibility include:

  1. “Crimes Involving Moral Turpitude” (CIMT) – crimes involving conduct that is, generally vile, depraved, and contrary to the accepted rules of morality and the duties to society in general (section 212(a)(2)(a)(i) of the INA)
  2. Controlled substance violations(all of them) – a single offence of simple possession of Marijuana or any type of drug paraphernalia
  3. Two or more summary convictions – at present, this does not include dangerous driving, DUI, or general assault
  4. Commercialized vice and prostitution, or serious criminal activities where immunity from prosecution is received.

CIMT – Crimes Involving Moral Turpitude

  1. Abandonment of a minor child (willful and resulting in the destitution of the child)
  2. Arson
  3. Assault with intent to kill, commit rape, commit robbery or commit serious bodily harm
  4. Assault with a dangerous or deadly weapon
  5. Blackmail
  6. Bigamy
  7. Bribery
  8. Burglary
  9. Contributing to the delinquency of a minor
  10. Counterfeiting
  11. Embezzlement
  12. Extortion
  13. False pretenses
  14. Forgery
  15. Fraud
  16. Gross indecency
  17. Harboring a fugitive from justice (with guilty knowledge)
  18. Incest (if the result of an improper sexual relationship)
  19. Kidnapping
  20. Larceny (grand or petty)
  21. Lewdness
  22. Mail fraud
  23. Malicious destruction of property
  24. Manslaughter – Involuntary (where the statute requires proof of recklessness)
  25. Manslaughter – Voluntary
  26. Mayhem
  27. Murder
  28. Knowingly receiving stolen goods
  29. Pandering
  30. Perjury
  31. Prostitution
  32. Rape (including “statutory rape” by virtue of the victim’s age)
  33. Robbery
  34. Tax evasion (willful)
  35. Theft (with intention)
  36. Transporting stolen property (with guilty knowledge)
  37. Aiding and abetting, being an accessory, or conspiring to commit any of the above

List of Crimes NOT Involving Moral Turpitude

  1. Black market violations
  2. Breach of the peace
  3. Breaking and entering (requiring no implicit intent to commit a crime involving moral turpitude)
  4. Carrying a concealed weapon
  5. Damaging private property (where intent to damage not required)
  6. Desertion from the Armed Forces
  7. Disorderly conduct
  8. Driving while license suspended or revoked
  9. Drunk driving (DUI) or reckless driving
  10. Drunkenness
  11. Escape from prison
  12. False statements (not amounting to perjury or involving fraud)
  13. Firearm violations
  14. Gambling violations
  15. Immigration violations
  16. Joy riding (where the intention to take permanently not required)
  17. Juvenile delinquency
  18. Liquor violations
  19. Loan sharking
  20. Lottery violations
  21. Minor traffic violations
  22. Passing bad checks (where intent to defraud not required)
  23. Possessing burglar tools (without intent to commit burglary)
  24. Possessing stolen property (if guilty knowledge is not essential)
  25. Smuggling and customs violations (where intent to commit fraud is absent)
  26. Tax evasion (without intent to defraud)
  27. Trespassing
  28. Vagrancy

Petty offence Exception

Section 212(a)(2)(A)(ii)(II) of the INA provides that a Foreign National may still be eligible for entry into US without a Waiver if the Foreign National committed a crime of moral turpitude that qualifies as a “petty offence”. A CIMT is considered a petty offence if the maximum penalty for committing it is one year or less, and the person was sentenced to no more than six-months imprisonment. An equivalency evaluation of the foreign offence as compared with the U.S. offence must be undertaken so as to equate the foreign law to US law.

A petty offence exception may be granted by a CBP Officer upon the Foreign National’s request for U.S. admission – THIS SHOULD NOT BE ATTEMPTED WITHOUT PROPER LAWYER REPRESENTATION-see above for possible consequence of attempted US entry while knowingly being inadmissible.

Other Reasons for Inadmissibility:

  1. Health Reasons – see below
  2. Security – Foreign Nationals who have been accused of or convicted of being a saboteur, terrorist, or a spy; Persons who are voluntary members of the communist party or any other type of totalitarian party, including Nazis, and any person who would be an endangerment to the U.S. foreign policy will also need special permission to enter the USA (which requires they prove that they are not a threat to the general public of the country).
  3. Immigration Violators and Illegal Entrants
  4. False Claim to U.S. Citizenship – Any person who has ever falsely claimed to be a citizen of the U.S. will be permanently banned without the ability to apply for a Waiver (exceptions are possible in extreme circumstances but rare).
  5. Military Service violations
  6. Miscellaneous Grounds for Inadmissibility – examples include practicing polygamist, international child abductors; former U.S. Citizens who have been found by the U.S. Attorney General to have renounced their citizenship as a way to avoid paying taxes owed to the IRS.

Health Reasons

USCIS lists several communicable diseases that are of a public health significance rendering a Foreign National inadmissible to the U.S., including at present:

  1. Gonorrhea
  2. Leprosy
  3. Syphilis
  4. Venereum
  5. Lymphogranuloma
  6. Inguinale
  7. Granuloma
  8. Chancroid
  9. Class A Tuberculosis, and

select physical disorders, mental disorders, and other communicable disease as determined by the United States Secretary of Health and Human Services.

USCIS and US state departments are also beginning to look at driving violations involving alcohol or drugs as possible health inadmissibly issues. E-2 (treaty trader/investor) Visa Holders will have their Visas revoked by the U.S. Embassy/Consulate issuing such E-2 Visa upon their notification that the E-2 Visa Holder has such a driving conviction.

Arrests but No Conviction?

A Foreign National has no right to enter the U.S.; entry is a privilege. The onus is on the Foreign National to prove to the U.S. government personnel (CBP Officer) that they should be allowed to enter the United States. Arrests anywhere in the world could render a Foreign National inadmissible of the U.S. if they admit to having committed the acts of the crime, despite and outcome of “no conviction.”

Convictions Older than 15 years and a 212(h) Waiver?

Crimes committed more than 15 years ago resulting in the Foreign National’s U.S. inadmissibility may be waived pursuant to INA 212(h)(1)(A). Knowing which crimes/convictions are waivable requires consultation with an experienced U.S. licensed immigration lawyer.