Waivers & Visa Denials
Inadmissibility
Individuals who are inadmissible are not permitted by law to enter or remain tin the United States. The immigration and Nationality Act sets forth grounds for inadmissibility.
The general categories of inadmissibility include health, criminal activity, national security, public charge, lack of labor certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories.
For certain grounds of inadmissibility, it may be possible for a person to obtain a waiver of that inadmissibility.
In some cases, exceptions are written into the law and no waiver is required to overcome the inadmissibility because the inadmissibility does not apply if the individual meets the exception. Examples include exceptions for persons who have been battered, abused or subjected to extreme cruelty, who are victims of severe forms of trafficking, and who are minors.
Application for Waiver of Grounds of Inadmissibility
If you are inadmissible to the United States and are seeking an immigrant visa, adjustment of status, certain nonimmigrant statuses, or certain other immigration benefits, you must file Form I-601 to seek a waiver of certain grounds of inadmissibility.
If you are abroad, and a U.S. consular officer has determined that you ineligible for an immigrant visa or nonimmigrant K or V visa because you are inadmissible to the United States, then you may be able to file an application for waiver of inadmissibility.
If you have been removed from the United States and need permission to reapply, in addition to a waiver of inadmissibility, you may be able to seek permission to reapply for entry into the United States at the same time you request a waiver of your ground(s) of inadmissibility.
Filing and Adjudicating Process
Let’s go over the overview of how this process works step-by-step.
- You have attended your Department of State immigrant or nonimmigrant (K,V) visa interview at the U.S. embassy or consulate, and complied with any requests by the consular officer.
- The consular officer has determined that you are ineligible for a visa because you are inadmissible to the United States.
- The consular officer has informed you that you are eligible to seek a waiver of your ground(s) of inadmissibility.
- You now file Form I-601 (and Form I-212, if necessary) with USCIS.
- USCIS adjudicates your application(s) and informs both you and the consular officer of the decision.
- If denied, you may be able to appeal the decision or file a motion to reopen or reconsider the decision with Form I-290B.
** If you reside in the United States, you may be eligible to apply for a Provisional Unlawful Presence Waiver (Form I-601A) before you depart for your visa interview abroad. This is a separate process. This is a process that is best suited to hire an attorney for because of the complexity of the filing and preparation. Contract our law office to lean much more about Provisional Unlawful Presence Waivers. These are very common in situations where a person is seeking immigration benefits while married and living in the United States illegally.
Notification of the Grounds of Refusal
Once a visa application has been properly submitted, a consular officer must either approve or refuse the visa. A visa can be refused only upon a ground specifically set out in the law or regulations. The officer should notify the applicant of the refusal
What are the Contents of the Notification?
The consular officer is required to provide timely notice of the decision to an applicant when a visa is denied.
The notice shold:
- be provided orally and in writing
- “list the specific provisions of law” under which the [applicant] is inadmissible;”
- state the factual basis for the refusal; and
- state, if applicable, that the refusal was based on a finding of inadmissibility made by the Department of Homeland Security.
Exception to the Notification Requirement
The requirement to notify the applicant of the grounds of refusal is subject to the following statutory exceptions:
- Crime-related reasons for refusal: The requirement does not apply to a person found inadmissible for crime-related reasons.
- Security-related reasons for refusal: The requirement does not apply to a person found inadmissible for security-related reasons. An applicant refused a visa for security grounds will not be told he reasons for refusal, but instead will only be given a reference to the applicable statutory or regulatory section.
- Waiver by Secretary of State: The Secretary personally may waive the requirement for an individual or class of inadmissible persons.
Despite these statutory exceptions, the Department of State still execpts that written notices will still be provided to the applicant unless the consular officer has received specific approval from the Department of State not to provide a notice in a specif case or group of cases. The attorney General has mandated that “an agency should no withhold information simply because it may do so legally.” The Attorney General “[…] strongly encourage[s] agencies to make discretionary disclosures of information.”
However, keep in mind, when the Consular Post explain the basis for refusal, certain information is not disclosable, such as:
- classified information
- sensitive law enforcement information
- information obtained from other Agencies
- Third-party information.
What are the Grounds for Refusal?
212(a) Refusals
An applicant whom the consular officer has determined falls within the “grounds of inadmissibility” will be refused a visa under a subsection of “212(a).”
These grounds of inadmissibility are a set of rules prohibiting the admission to the U.S. of certain classes of persons for crimes, medical reasons, security, because they would likely become public charges, for prior immigration violations, and other miscellaneous grounds.
There are exceptions and waivers available to many of the grounds.
214(b) Refusals
Section 214(b) if the Act requires consular officers to “presume” that certain nonimmigrant visa applicants are immigrants unless they prove to the officer’s satisfaction that they meet each of the requirements for a particular nonimmigrant visa.
These grounds of inadmissibility are a set of rules prohibiting the admission to the U.S of certain classes of applicants for B1/B2 (visitor for business or pleasure), F-1 (student), and J-1 (exchange visitors) visas, among others.
The 214(b) ground for refusal does not apply for H-1, L-1, or immigrant visa applicants.
Often times, consular posts issue boilerplate refusals notices citing 214(b) as the basis for denial.
The most common basis for issuance of a 214(b) refusal letter as the basis for denial is because the applicant failed to prove an unabandoned foreign residence or nonimmigrant intent. There is no waiver of this ground of ineligibility. However, this ground of ineligibility is not permanent. An applicant can subsequently show a change in circumstances and reapply.
221(g) Refusals
An application will be subject to a “quasi-refusal” under 221(g) if a final determination is deferred by the consular officer.
An applicant who has been refused under 221(g) need not complete a new visa application form or pay the visa application fee again, if less than one year has elapsed since the latest refusal. If the delay is due to the U.S. government’s action then there is no time limit.
When the reason for the deferral has been addressed, the visa application form is to be retrieved from the post’s files, the new information noted, and the visa will either be issued or refused.
Reconsideration or Resubmission
In all immigrant visa cases, the applicant has 1 year after refusal to request reconsideration and may not need to file a new application or pay a new application fee.
If more than one year has elapsed, reapplication is required.
The Motion to Reconsider should be professionally presented, and include all relevant legal arguments and documentary evidence.
For Nonimmigrant Visa refusals – except 221(g) refusals- the only way to obtain “reconsideration” is to complete a new visa application form and resubmit the application.
How Can I Receive Assistance?
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