Dealing with Inadmissibility
The terms “admissible” and “inadmissible” are legal terms of art, and they have very specific meanings in the immigration context. All you really need to know is that in order to obtain a visa an immigrant must be found “admissible” to the United States. When an immigrant applicant is deemed “inadmissible,” they are barred from entry to the United States.
An immigrant can be inadmissible for a variety of reasons. The Immigration and Nationality Act (INA) governs all immigration matters. The full list of reasons an immigrant can be ruled inadmissible can be found at INA § 212(a). The statute can also be found under the “Laws” tab at USCIS.gov.
Most reasons for inadmissibility fall into one of two categories: medical and criminal.
Examples of medical reasons for inadmissibility are if the immigrant has a communicable disease (such as Hepatitis or Malaria) or mental or physical disorder that may harm others.
Examples of criminal reasons for inadmissibility are if the immigrant has committed crimes of “moral turpitude” (CIMT), has been unlawfully present in the United States, drug abuse, or convicted of prostitution.
There are also some reasons that are not medical or criminal, but instead are policy-based.
- The immigrant is likely to become a “public charge”, or need government assistance or welfare.
- The immigrant belongs to a totalitarian party.
- The immigrant is a polygamist.
Admissibility requirements are not black and white. The list of requirements is intentionally vague in order to give a lot of discretion to USCIS officers. USCIS officers can broadly decide what constitutes a crime involving moral turpitude or if the immigrant has a disorder that causes harm to others.
An immigrant must receive a medical exam, participate in an interview with a USCIS officer, and undergo a background check to determine their status as admissible or inadmissible.
The medical exam should be completed by a doctor on the approved doctors list that USCIS maintains via their Civil Surgeon Locator.
If you are applying for a nonimmigrant visa, such as a K-1 or K-3 visa, and your embassy or consulate requires you to get a medical exam prior to issuing the visa so you can enter the United States, the Department of State maintains a list of approved physicians outside of the United States. The Department of State refers to these doctors as “panel physicians.”
You can find a panel physician in your current country by accessing the Department of State’s website here. After locating the closest city to you on the drop-down menu, you will be able to download a PDF document with information on panel physicians in the area.
As part of the medical exam the doctor will compile the immigrant’s medical history to determine which vaccinations they have had and which they will need to be admissible. In addition to reviewing the immigrant’s medical history, the doctor will also administer a physical exam, a chest X-ray and a blood test for syphilis.
Depending on the country the doctor is in they will either send the medical exam information directly to the U.S. consulate or embass, or they may give the paperwork to the immigrant in a sealed envelope to bring to their visa interview.
Each marriage or fiancé visa applicant will need to attend interviews at their consulate prior to entry, and each immigrant will likely be interviewed by at a USCIS service center once inside the United States as part of the Adjustment of Status process. The main purpose for these interviews is for the USCIS to ensure your marriage is valid and that you do not fall under any of the inadmissible categories.
The interviewer will ask many questions about your relationship. The questions can range from “have you met each other’s parents?” to questions asking what city your fiancé/spouse was born in.
View our article “What Questions Will I Be Asked at my Marriage-based Green Card Interview?” to get a sense of the kinds of questions you should prepare for.
If you have attended the interview together, you can answer these questions together, but if the USCIS officer suspects anything suspicious they may separate the pair and interview you separately in “fraud interviews” to make sure your answers match.
The USCIS examines interview answers in detail. It is important for you to prepare for the interview and be completely truthful, because even a minor slip-up could cause the interviewer to deny your application or determine that you are inadmissible.
With each immigration application you will be required to provide fingerprints to USCIS. One of the purposes you provide fingerprints is so that USCIS can conduct a thorough background check. Read our article “Will My Fiancé Have to Pass a Background Check to Get a Green Card?” for more information.
The background check will reveal your criminal and immigration history to USCIS. Since the reasons for inadmissibility based on criminality are not all straightforward, some of these reasons need further explanation to understand how they might make you inadmissible.
Crimes Involving Moral Turpitude (CIMT)
This term is commonly used in a variety of legal settings today, but it actually originated in The INA. The term itself is rather vague, so the Department of State has issued guidelines for determining if a crime is one involving moral turpitude. Broadly, crimes involving moral turpitude (CIMT) are crimes that violate the basic moral standards of society.
The Department of State noted the three most common elements of a CIMT are: fraud, larceny and intent to harm persons or things. The Department also lists several examples of CIMTs to help USCIS officers decide if an immigrant’s criminal history includes any CIMTs. The following are some of their examples of CIMTs:
The State Department went one step further to give examples of what does not constitute a CIMT:
- Damaging private property
- Passing bad checks
- Juvenile Delinquency (An immigrant will not be held inadmissible for CIMTs committed under the age 18)
- Breach of the peace
- Smuggling or customs violations (where no intent to defraud was present)
The full list of examples can be found at the U.S. Department of State website.
Unlawful Presence in United States
As previously mentioned, USCIS considers immigrants inadmissible who have had unlawful time in the United States. However, this rule is not cut and dry.
Immigrants that have been caught in the United States without the permission of USCIS, and have not tried to re-enter since then, are subject to three-year or ten-year time bars on re-entry.
Immigrants that were unlawfully present in the country for more than a year, were deported or voluntarily left, and then returned (or tried to) to the United States are inadmissible. This is referred to as “the permanent bar”.
The duration of the immigrant’s unlawful stay in the United States determines whether they are subject to the three-year bar, ten-year bar, or the permanent bar.
If the immigrant spent more than 180 days unlawfully in the United States, they are subject to the three-year bar. If the unlawful stay lasted more than a year, the immigrant is subject to the ten-year bar.
Exceptions to Unlawful Presence Inadmissibility
As with most rules, there are exceptions to the time-bars. Most of them center around the date April 1, 1997. That was the date the penalties for unlawful stay in the United States went into effect. Unlawful stay prior to this date does not trigger a time-bar penalty.
If the immigrant resided illegally in the United States from 1993 until 1996, they are not subject to any time-bar because the stay was before April 1, 1997.
If the immigrant did not unlawfully stay in the United States for more than 180 days continuously, the time bar does not apply.
Dealing With Inadmissibility
With such a variety of reasons to be found inadmissible it is not uncommon. Being found inadmissible is not a death sentence to your immigration process; however, some grounds of inadmissibility are more difficult to overcome than others. Expect delays.
If you are found inadmissible, we highly recommend that you hire a competent attorney to help you evaluate the grounds of inadmissibility. They can also help with any waiver application or additional paperwork that may need to be submitted. Waivers are complicated, and so you will need someone experienced with immigration law to help you convince USCIS that any grounds of inadmissibility should be waived.
Immigrating to the United States is expensive, and many are discouraged from paying for a lawyer’s assistance on top of the already burdening USCIS filing fees. While hiring a lawyer may alter your budget, it is well worth it if you have been deemed “inadmissible” and discover you must file a waiver. A small mistake on your part could be more costly than simply hiring an attorney in the first place.