What is Inadmissibility?
Entry to the United States is strictly conditioned upon the entrant being “admissible”. This means that you will not be granted a visa or properly enter the United States under the Visa Waiver Program (VWP) without first successfully applying for a waiver.
Why am I inadmissible to the United States?
While by no means an exhaustive list, the most common grounds of inadmissibility (ineligibility) are:
1. Criminal record
A criminal record in and of itself does not cause one to be inadmissible; the US for the most part makes findings of inadmissiblity based on: convictions for “crimes involving moral turpitude”, multiple convictions attracting an aggregate sentence of five years or more and drug offenses. Although, you may be deemed inadmissible on the basis of other convictions including prostitution, money laundering and people trafficking. Even in the absence of convictions for these offenses, you may still be deemed inadmissible if you admit to the commission of such crimes, therefore bringing certain UK cautions into the remit. This said, very strict criteria must be met and procedure followed in order to rely upon an admission in finding an individual inadmissible.
Crimes involving moral turpitude (“CIMT”)
Neither the seriousness of the criminal offense nor the severity of the sentence imposed is determinative of whether a crime involves moral turpitude. Violations of statutes which merely license or regulate and impose a criminal liability without regard to evil intent do not involve moral turpitude.
Crimes involving moral turpitude include, but are not limited to: Theft-based offenses, arson, fraud, bribery, assault, manslaughter (except negligent), murder, rape, distribution of controlled substances, inchoate offenses to CIMT, and kidnapping. CIMTs are defined as acts which are morally reprehensible and intrinsically wrong; as such, generally, crimes not involving intent or recklessness will not fall within the definition.
Interestingly, particularly to countries that do not have the right to bear arms, is that offences including carrying a concealed weapon and escaping from prison are not considered crimes of moral turpitude and therefore do not cause you to be inadmissible by virtue of the offence. They have however cause you to be inadmissible based on time spent in custody.
There are exceptions to CIMTs that deem an individual inadmissible, including petty offenses, juvenile crimes that meet the relevant criteria, and purely political offenses.
Two or more convictions
Irrespective of “moral turpitude”, an individual will be inadmissible to the US if convicted of two or more offenses for which the aggregate sentence of confinement imposed was equal to or in excess of five years. Periods of confinement in suspended sentences are also to be considered for purposes of this ground of inadmissibility.
Controlled substances
Generally, individuals convicted of or who admit having committed the essential elements of an offense relating to a controlled substance will be inadmissible to the US.
2. Fraud or misrepresentation to the US government in previous immigration applications
In general a person will be deemed inadmissible if they commit fraud or willfully misrepresent a material fact in order to procure an immigrant benefit.
Misrepresentation
Simply making a false statement will not cause one to become inadmissible, such a false statement has also to relate to a material fact. In determining what amounts to a material fact, one must ask the question: was the false statement in relation to a matter that would make the applicant excludable and/or shut off a line of inquiry? If the answer is yes, the fact will usually be considered material. The misrepresentation also has to be willful, which means deliberate and voluntary. Notwithstanding this standard, deliberate avoidance or willful blindness will not overcome the standard.
Example: A person who has a conviction for a theft offense which carries a sentence of more than one year, deliberately and voluntarily indicates that they do not have a conviction for a crime involving moral turpitude when obtaining entry to the US under the Visa Waiver Program.
Fraud
A finding of fraud requires a higher standard than that of willful misrepresentation – there must be a determination that the applicant made a false representation of a material fact with knowledge of its falsity and with the intent to deceive a consular or immigration officer.
3. Prior immigration violations
Prior immigration violations include: acts that have previously caused an individual to be the subject of removal proceedings, student visa abuse, document fraud, and most commonly unlawful presence in the US.
Three-Year Bar
If an individual is unlawfully present in the United States for more than 180 consecutive days but less than one year and departs prior to the initiation of removal proceedings, he or shewill be inadmissible for a period of three years from the date of departure or removal.
Ten-Year Bar
An individual who has been unlawfully present in theUS for 365 consecutive days or more will be inadmissible for a period of ten years from the date of departure or removal.
What is a Waiver of Inadmissibility?
For the most part, individuals may overcome most grounds of inadmissibility through a successful application for a Waiver of Inadmissibility.
A waiver of inadmissibility is an official determination by the US government that allows an otherwise ineligible person to enter the United States. Matters of inadmissibility can be acutely complex and the outline Davies Legal provides above states the law in its most basic form.
While it may appear prima facie that an individual is or is not inadmissible, it is important to engage in a full appraisal of the facts before applying for a waiver.
