Thursday, February 25, 2010

Waivers and Inadmissibility


When a non-citizen is applying for a visa to visit the United States, he/she must be “admissible”. An admissible person has no conditions or characteristics which the U.S. government deems undesirable. Likewise, an “inadmissible” person falls into one of the categories of people that that the U.S. government seeks to exclude from entering the United States. These categories include people with various physical and mental disorders, people who have committed crimes, and people who have participated in activities the government deems subversive.

When a person who is seeking entrance into the United States, either on a permanent or temporary basis, falls into one of the categories of inadmissibility, he/she must either prove that inadmissibility does not apply in his/her case, or he/she must obtain a waiver (which is like a pardon). Waivers are not available for all the grounds of inadmissibility, as discussed below.

For instance, imagine a situation in which a man from Yemen (whose name is Fuad) comes to the United States as a visitor. He overstays his visa and remains in the United States for 2 years. Fuad then returns to Yemen to visit his family. He again wants to return to his second home in California, where he has a job and an apartment. When Fuad applies for a visitor’s visa at the consulate in Sanaa, he is refused. He has broken U.S. immigration laws by overstaying his visa. The consulate will not give Fuad a visa unless Fuad can prove that he is eligible for a waiver (a pardon) for violating U.S. immigration laws. How can he be eligible for a waiver? Unless Fuad has a wife or child in the United States who will suffer extreme hardship should Fuad not be allowed to return to the United States, Fuad will be denied a visa. In addition, since Fuad has been out of status for more than one year, unless he can obtain a waiver, he will be prevented from returning to the United States for 10 years.

The 1996 Immigration Reform law made many changes to the Immigration code. One of these changes is the “summary exclusion” law. This law empowers an immigration inspector at the airport to exclude and deport someone who is seeking admission to the U.S. without allowing the person the right to explain his/her case to an immigration judge. Under this law, if the inspector at the airport thinks a person seeking admission is making a misrepresentation about anything connected to his/her purpose in coming to the U.S., intent to return to his/her home country, or prior immigration history, the officer will exclude that person. Moreover, the person may not request entry for five years, unless a special waiver is granted.

Because of these harsh results, it is very important to understand the terms of your requested status (i.e., understand what you must need for the type of visa you are requesting). Never make any representations or use false documents.

If you are found by the officer to be inadmissible, you may request to withdraw your application to enter the U.S. in order to prevent having the five-year deportation order on your record. The immigration officer may allow you to do this in some cases.

Certain grounds for inadmissible cannot be overcome by a waiver. These grounds include (1) persons who have made false claims to U.S. citizenship, (2) persons who improperly obtain student status to attend a public elementary school or adult education program, or transfer from a private to a public program except as permitted, (3) persons who were previously deported and who subsequently attempt to enter the U.S. without permission, (4) stowaways, (5) draft evaders, (6) drug abusers or addicts, (7) drug traffickers, (8) spies and terrorists, etc.

As you can see, overcoming a ground of inadmissibility can be complicated. You will need to consult an experienced immigration attorney who will be able to analyze both the applicable immigration law and the maze of criminal laws that apply in a given case.

About the author: Kathleen Lord-Black is a U.S. immigration lawyer.  Her offices are located in downtown Vancouver, British Columbia.   She has served as Immigration Consultant for the San Francisco Public Defenders Office, 2005 Chair of the Immigration Section of the Barristers Club of the Bar Association of San Francisco, and former Congressional liaison for U.S. Representative Farr. Ms. Lord-Black is an active member of the American Immigration Lawyers Association and the  American Civil Liberties Union. Her articles regularly appear in the Bay Area Arabic-language newspaper, Alra’i Alarabi. Ms. Lord-Black can be reached via email at kathleen@kathleenlord.com; and by telephone at (360) 329-2436 (U.S.) and (604) 352-2006 (Canada). www.immigration-etats-unis.com