Visa Ineligibility

Persons who are ineligible for a visa are also inadmissible to the United States.  Commonly encountered grounds are categorized as follows:

1/ Health Grounds

Class A conditions render a person inadmissible and ineligible for a visa.  They include communicable diseases. HIV is not one of them, but active tuberculosis is.  They also include

(a) physical or mental disorders with associated harmful behavior or harmful behavior that is likely to repeat, as indicated for example by a drink driving offense and

(b) drug addiction or abuse

Class B conditions are those that are not grounds for inadmissibility or ineligibility for a visa, though they are substantial deviations from normal health.  A visa applicant may need to show that they can afford to care for the condition while visiting the United States.

2/ Criminal Grounds

Crimes involving Moral Turpitude (CIMT). Persons who admit to an immigration officer or to a consular officer the elements of a CIMT or those with a criminal record, including a UK caution, may be ineligible for a visa to the United States or inadmissible, even if they already have a US visa.  They should not use visa free travel, a.k.a. ESTA or the visa waiver program.  The categorization of crimes as “involving Moral Turpitude,” is complicated, and often going in for a visitor visa is recommended instead of using visa free travel.   Exceptions to the general rule about having a criminal record including a CIMT exist for those who committed a CIMT when they were young or those who committed only one minor CIMT.  Those are called the juvenile or petty offense exceptions.  Exceptions also exist for criminal records related to political dissidence.  If you have a criminal record, even a UK caution, a consultation with a US lawyer who focuses on analysis of the immigration and visa consequences is highly recommended.

Drug Offenses.  Drug Offenses are a separately named category of criminal grounds for ineligibility for a visa. They are discussed further in this article, Drug Use and Admission to the United States.  As with CIMT, the focus is on whether there has been either a conviction for a drug related crime or an admission to the elements of a drug related crime to a consular officer or other immigration official, like a border official.  Youthful offenses (under 18) related to simple possession or use, as opposed to drug trafficking, may be given more leniency. 

A famous British citizen gave his name for the proposition that a foreign violation of a controlled substance law must involve a statute that includes the intent element necessary for a criminal conviction.  Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).  A specific intent, or mens rea, like willful, knowing, purposeful, reckless, etc. is not needed for a controlled substance violation conviction from the United States.

Planning to Engage in Prostitution in the US.  Engaging in prostitution or soliciting prostitutes or transporting them can all be grounds for inadmissibility and ineligibility for a US visa.  Prostitution is a CIMT, and there is a separate criminal ineligibility section of the Immigration & Naturalization Act (INA) that also covers related acts.  INA Sec 212(a)(2)(D) has three sub-sections: (1) engaging in prostitution, (2) procuring prostitution and (3) coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.  The first two sections have 10 year ineligibilities; the last one has no time horizon.  Exceptions may be argued.  For example, soliciting a prostitute for oneself one-time as a “john,” or someone who hired a prostitute, is not a ground for ineligibility under INA 212(a)(2)(D) according to the manual used by visa adjudicators at the US Embassy in the UK, the Foreign Affairs Manual.

If you have a concern in one of these criminal grounds for visa ineligibility, consult with a US immigration lawyer before applying for a visa or attempting to enter the United States with visa free travel.  An ineligibility finding may not be the last word, as a non-immigrant waiver may be available.  This is discussed briefly in the next paragraph.

3/ Expedited Removal or Removal in Proceedings

Persons who have been ordered removed in administrative proceedings, for example, (1) after a confrontation when trying to enter the US at an airport or (2) after being picked up, detained and sent home for working unlawfully or overstaying a period of authorized stay, may be inadmissible and therefore ineligible for a new visa for periods of 5, 10 or 20 years. 

A waiver for this ineligibility may be available for a visitor or other visa, after a period of time has passed.  A waiver for a nonimmigrant or visitor visa is known as a non-immigrant waiver, Hranka waiver or 212(d)(3) waiver.  This waiver requires three elements to qualify for the recommendation for it by a consular officer at a visa interview: (1) legitimate travel purpose, (2) good ties to a place outside the United States, and (3) evidence that the activity that caused the ineligibility will not repeat.  Time is a powerful bolster for each of these elements.  Consult with a US immigration lawyer, if you would like to enter the US after a prior removal or deportation.

4/ Fraud and Material Misrepresentation 

Fraud and material misrepresentation result in permanent ineligibilities.  A person who incurs this bar for lying to an immigration officer or consular officer in order to obtain an immigration or visa benefit will always need a waiver, like the Hranka waiver described above to obtain a visa to visit the United States.  This ineligibility was developed obviously to encourage all visa applicants and those approaching the US border to be truthful with border and consular officials.

The fraud and misrepresentation finding has been developed in the past year with regards to the 30-60 Day Rule, to become a 90-day rule.  Those who engage in activities that are inconsistent with their promised activities when they interviewed for their visitor visa may be found to have misrepresented themselves to the consular officer at that time.  This includes unauthorized work or applying for adjustment of status (green card) after a new marriage, if it occurs in less than 90 days from entrance.  They may find themselves with a fraud and misrepresentation finding the next time they visit a US consulate or embassy. 

Errors on the Online Visa Application Forms DS-160 or DS-260.  Note that you will not incur a fraud and misrepresentation finding for a simple error on your online-visa application forms, if you correct them during your visa interview.  If there is an error on your form of which you are aware, simply inform the consular officer at the time of your interview.  A simple error would be found before the Security and Background Check questions!  If something has changed or you need to correct something entered in the Security and Background questions, consult a US immigration attorney!  You will need to request that the visa application be re-opened or fill in a new form. 

5/ Security and Related Grounds: Terrorist Activity

Applicants for visas who have engaged in terrorist activities, are terrorists, have incited terrorist activities or are members of terrorist organizations or political or social grounds that endorse or espouse terrorist activities are inadmissible or ineligible for a visa.  Waivers are available in only limited circumstances.  Read more about Visa Decisions Delays linked to national security concerns.

Contact Melissa Chavin – US Visa Lawyer

To discuss your specific circumstances and requirements, contact London based US lawyer Melissa Chavin to schedule a paid consultation. Consultations may be conducted by phone, in person in London, or by video conference and cost GB£425. Ms. Chavin is licensed to practice US law, and can help you resolve your concerns.