Cohen Brosh Law Offices

Refusal of Entry

Refusal of Entry

Refusal of Entry

Introduction

Considering immigrating or temporarily visiting the United States? Are you worried that a criminal history or blemish on your application may cause you to be rejected? Perhaps you have received a visa but were refused entry at the border. All of these scenarios can happen when attempting to enter or apply for a visa to the United States. Refusal of entry can seem like an impossible position to be in but we here at Cohen Brosh Law Offices can help! Keep reading to find out more about what can cause you to be refused at the border or cause a visa application to be rejected and what you can do about it!

Overview

In the United States (US) all immigration decisions are made under the Immigration and Nationality Act (INA). The INA is a part of the United States Code, which is a collection of laws in the country. The INA is extremely extensive and has been amended many times. It was established in 1952, it replaced and revised the previous immigration system that had been in place since the 1920s. The INA, as it stands now, is divided into 5 sections.

Immigration and Nationality Act Sections:

I: General Provision

II: Immigration

III: Nationality and Naturalization

IV: Refugee Assistance

V: Alien Terrorist Removal Procedures

The INA refers to foreign nationals as aliens. This Act is what gives said aliens, the right to live, work, study or become citizens in the United States. It is also the section of the US code that bars certain foreign nationals, causing them to be inadmissible and gives Immigration and Customs Enforcement (ICE) the right to remove any illegal aliens. We will discuss inadmissibility later in this article and ways to become admissible through the INA waivers.

Note: The INA is extremely extensive and involves many waivers, we recommend consulting with an immigration professional when considering immigration to the United States. Contact us today!

In the fiscal year 2017, there were more than 1 million new permanent residents in the United States. About half of that number are foreign nationals who were newly arriving to the country. 45% of those new permanent residents were immediate relatives of US citizens. 12% of these PR’s were through employment-based immigration.

In the same year, 2017, there were over 77 million foreign nationals admitted to the US as non-immigrants. That is an enormous number and includes a variety of reasons for travel. This would include foreign nationals entering the US temporarily for tourism, study, work, visiting friends and family, etc. Though a vast majority of visitors in the category were for tourism or pleasure, 10% was for work, and 5% for business or family visits.

Though the US does allow a large number of foreign nationals into the country each year, they do crack down on illegal immigration and those who are inadmissible. Even if you receive a visa, you are technically not admissible until a border patrol officer has inspected you, deemed you eligible, and physically allows you into the country at a port-of-entry. Border patrol officers have the right to turn away any foreign national who they consider to be inadmissible even if they have a visa. They are able to use their gut instinct when inspecting foreign nationals at the border. Being turned away at the border is a common occurrence. It is therefore very important that you ensure that you have all of your required documents and that you are properly prepared when attempting to enter the country. Fortunately, if you are inadmissible, there are other pathways to apply.

Note: Keep reading to find out about waivers for those who may be inadmissible!

Types of Visas

Applications for citizenship, visas and green cards are submitted to the United States Citizenship and Immigration Services (USCIS). Foreign nationals can obtain a visa with the intention of staying in the United States indefinitely, or for a temporary and short period of time. This is the difference between an immigrant and nonimmigrant visa. The purpose of your trip to the US will play a large part in whether or not you are admitted. The type of visa that you are applying for is also a major factor. The U.S. has several visas and you have to make sure that you apply for the right visa that matches your purpose for entering.

Immigrant Visa

An immigrant visa allows a foreign national, or alien, to live and work in the USA indefinitely. You may have also heard this referred to as permanent residence or having a green card or being a resident alien. As long as you comply with the terms of your visa, you will not be required to return to your home country.

Some Examples of Immigrant Visa Categories USA:

  • Spouse of US citizen (IR1, CR1)
  • Family Sponsorship (IR2, CR2, IR5)
  • Employer Sponsorship (EB1, EB2, EB3, EB5)
  • Religious Workers (SD, SR)
  • Diversity Immigrant Visa (DV)
  • Returning Resident (SB1)

Aliens can get immigrant visas through family sponsorship, having superior work skills or a variety of other ways. Being sponsored does not guarantee that you will receive the visa. You must submit a strong case that you are a good candidate for the visa you are applying for.

Nonimmigrant Visa

A nonimmigrant visa allows a foreign national to enter the US on a temporary basis. You will be limited in what you can do while you are in the country. For example, if you receive a student visa, you are limited to the institution, program, and time frame that you were originally admitted for. In this case you cannot quit your program and begin working unless you apply to change your visa type.

Some Examples of Nonimmigrant Visa Categories USA:

  • Tourism (B-2)
  • Business Visitor (B-1)
  • Intra-company transferee (L)
  • Student (FI)
  • Victim of criminal activity or human trafficking (U, T)

Those applying for nonimmigrant visas will be closely reviewed for the likelihood that they plan to return to their home country. USCIS does not want foreign nationals applying for nonimmigrant visas if they intend to later change their status and stay in the US or remain illegally (overstay). Nonimmigrant visa applications can often be rejected under section 214(b) of the INA. Under the guidelines of this section, foreign nationals’ applications can be rejected for not showing sufficient proof they are a good candidate for the visa they are applying for. There must be proof of strong ties to your home country and proof that you intend to return to your home country when (or before) your visa expires.

Note: If your application is rejected and the reason is cited as section 214(b) of the INA, when you re-apply your new application must show sufficient changes. You must address any reasons the immigration officer gives for rejecting your application. The processing officer will need to see more proof that you are a good candidate for the type of visa you are applying for.

Nonimmigrant Visas: Overstay

All nonimmigrant visas eventually expire, though aliens have the option of applying for an extention. If you do not apply for an extension within reasonable time, or leave the country, before the visa expires, the visa is void. Aliens with an expired visa are considered ‘overstaying.’ Those who are overstaying in the USA will have originally come to the US with a valid visa but violated the terms of that visa by staying in the country after it is no longer valid. Overstaying is considered to fall under the category of ‘Unlawful Presence.’

Unlawful Presence in USA

Being unlawfully present in the US is the period of time that you are in the Unites States without permission. This can be due to overstaying the period of your visa or entering the country illegally. All aliens are required to be inspected at a US port-of-entry by a CBP officer. Even those with approved visas are not yet considered immigrants but are ‘intended immigrants’ until they are inspected and approved by a CBP officer at a port-of-entry. Any alien who enters the country without this inspection is considered to be unlawfully present.

The INA includes bars to admissibility for aliens who are unlawfully present. You could potentially be banned for life from the US if you are caught being lawfully present. If you are barred, you will not be able to apply for any sort of visa, become a permanent resident or enter the United States at any port-of-entry. The INA outlines the criteria for 3-year, 10-year and permanent bans to the USA.

Bars to Admissibility: Unlawful presence

  • 3-year Unlawful Presence Bar
    • If you are unlawfully present for more than 180 days and less than a year during a single stay; and
    • If you leave the US voluntarily before DHS initiates removal proceedings
  • 10-year Unlawful Presence Bar
    • If you are unlawfully present in the US for more than 1 year
    • If you left voluntary or you were removed by US DHS or other government means
  • Permanent Unlawful Presence Bar
    • If you were unlawfully present for over a year and left the country voluntarily or forcefully; and
    • If you enter or attempt to re-enter the US without being inspected and approved physically at a port-of-entry by a DHS officer

If any of the above bars apply to you, unfortunately you will not be able to apply to enter the US. Depending on the type of visa you are seeking (immigrant or nonimmigrant), you may be able to apply for a waiver or permission to apply. In these cases, applicants will need to submit a very strong case for themselves to be awarded a waiver.

Note: For expert advice on legally entering the US after being barred contact Cohen Brosh Law offices!

Reasons for Inadmissibility

U.S. Customs and Border Protection (CBP) adheres to a Code of Federal Regulations when inspecting all foreign nationals seeking entry into the United States. All foreign nationals (or aliens) seeking entry into the US must establish their admissibility. This can be done by showing proof of permissions to enter the US, like a visa. Though this does not guarantee entry, the CBP officers have a responsibility to fully inspect every alien before granting entry. They have the right to make decisions at their own discretion. This means that even if you have a visa and all your travel documents are in order, there is still a chance that CBP will initiate removal proceedings or not allow you into the country.

We recommend becoming familiar with the common reasons that aliens may be inadmissible to the US. An alien can be determined to be inadmissible at the port-of-entry, and be denied entry into the U.S. Their applications for visas or green cards can also be denied due to inadmissibility. But foreign nationals living in the U.S. can later be inadmissible. Being aware of the categories of inadmissibility can help you submit a stronger application and be better prepared for travel.

Categories of Inadmissibility

  • Health-related grounds
  • Criminal and related grounds
  • Security and related grounds
  • Public charge
    • Related to those who receive public benefits for more than 12 months
  • Labor certification and qualifications for certain immigrants
  • Documentation requirements
  • Aliens previously removed

 

Most of the categories of admissibility in the U.S. Federal Code are for the sake of protecting the public. For example, the health, criminal grounds and security categories directly affect the health and security of the American population. It is from this perspective that the CBP officers inspect applications for immigration, aliens requesting entry at a port-of-entry as well as aliens currently living in the U.S.

Common Reasons for Inadmissibility

  1. Medical Issues
  2. Criminal Record
  3. Missing documents at port-of-entry
  4. Travel bans on your country
  5. Lying on application or to CBP officer
  6. Suspicious content on your devices or social media
  7. Working illegally in the USA

Medical/health Issues

Under this category of admissibility, even a completely healthy foreign national can be declined a visa or turned away at a port-of-entry due to medical grounds. Aliens must provide proof that they have been vaccinated against vaccine-preventable diseases like mumps, polio, rubella, etc. These must be official medical documents proving vaccination. CBP officers also do not allow any travelers who have a contagious disease that could be a risk to general public health. Foreign nationals are responsible for providing proof that they are not at such risk.

Note: There are some exceptions to the vaccination requirements for eligible children.

COVID-19 Requirements

Beginning in November 2021, foreign nationals who cannot prove that they are fully vaccinated against COVID-19 might not be admitted into the country. All aliens must ensure that they have proof that they are vaccinated and must be able to present proof of a negative COVID-19 test when they arrive at the port-of-entry. There are several exceptions to the current COVID-19 policies at the moment, visit the United States travel site for more information.          

Note: Although there is currently no Federal requirement to quarantine upon arrival- individual states have the right to require it. Make sure you review the policies of the state you plan to travel to.

Criminal Record

Any foreign national who has committed a crime at any time is inadmissible to the U.S. This includes crimes related to drug trafficking, prostitution, money laundering, etc. There are some exceptions in this category. For example, if an alien committed a crime in which the maximum conviction is less than a year and the alien was only required to serve 6 months or less than that, they may still be admissible to the USA. This will depend on the discretion of the CBP officer. Foreign nationals who committed a crime when they were younger than 18 years of age and the crime was done over 5 years ago may also be admissible.

Missing documents at the port-of-entry

Some foreign nationals attempt to enter the U.S. with insufficient travel documents and are sent away. Simply traveling with a visa and a passport is often not enough to be deemed admissible to the U.S. Even if you have submitted all your supporting documents prior to travel and have been approved for a visa, you may still need to produce those documents at the border. CBP officers conduct full inspections of all travelers and will often request documents like medical documents.

Most aliens will not be accepted into the U.S. either through a visa application or at a port-of-entry without showing sufficient ties to their home country. If you cannot show an immigration or CBP officer that you have connections to your home country and intend to return there, you may be deemed inadmissible.

Travel bans on your country

Aliens from countries with travel bans to the U.S. are inadmissible. There may be some exceptions depending on professional positions or diplomatic status. During the coronavirus pandemic, the United States placed a travel ban on countries with high rates of the virus. These bans are more like limits to travel but can nevertheless restrict aliens from select countries from entering the U.S.

Countries with current travel Bans

•          Botswana•          Mozambique
•          Eswatini•          Namibia
•          Lesotho•          South Africa
•          Malawi•          Zimbabwe

Lying to immigration or CBP officer

Foreign nationals who are eager to be admissible to America may be tempted to exaggerate or simply lie but this is a very serious action. Even misleading an immigration officer (on your application) or a CBP officer (at a border) can result in inadmissibility. Many aliens can find themselves permanently banned if it appears that they have misled an immigration or CBP officer.

Note: Foreign nationals should never lie or mislead when applying for immigration or temporary travel. It is in your best interest to seek counsel if you believe there may be issues with your admissibility. Contact Cohen Brosh Law Offices for personalized immigration advice.

Working illegally in USA

Foreign nationals who have been caught working illegally in the United States are inadmissible to the country. Removal proceedings will be initiated against them, they will be facing deportation. Working in the U.S. as an alien without a work permit or permission is a violation of the admissibility criteria.

Some aliens may be refused entry because a CBP officer may suspect that they intend to work illegally upon arrival (i.e., Without a work permit). To avoid this, it is important to travel with sufficient evidence of ties to your home country. The officer must be confident that you intend to return to your home country and are not attempting to work and potentially stay in America.

How to show ties to home country:

  • Evidence of residence (active lease or rent agreement)
  • Proof of properties or financial assets in your home country
  • Evidence of employment in your home country
  • Evidence of enrollment in a study program in your home country
  • Show family ties in home country

How to Cancel the Entry Ban: Waivers

Certain categories of inadmissibility offer waivers that can be filed by foreign nationals. Applying for this waiver will act as a request for excusing you from certain grounds of inadmissibility. If you have previously been removed from the United States, you may need to also apply for permission to reapply to enter. Some rejected waivers can be appealed depending on the situation. There is also the option to file an application for reconsideration of the finding in inadmissibility. This also depends on the circumstances.

Applying for Waivers: Process

The type of refusal you previously received may be a determining factor in whether you will be able to return to the US. Your reason for traveling will also be considered when your waiver application is reviewed. It is your responsibility to make a case for yourself and prove that you qualify for the waiver. You can review the U.S. Federal Code to determine the best way to make a case for yourself given the legal guidelines.

Note: Admission categories for aliensdocuments are extensive, it may benefit foreign nationals to seek professional advice on this matter.

 Step 1: Submit first application:

Foreign nationals can only apply for a waiver if their visa application has been recently rejected. You will receive a written and/or verbal explanation for why you have been rejected. The reason will be made clear to you. After your application is rejected, you will be told by a consular officer at a US embassy or consulate if a waiver is an option for you.

Step 2: Re-apply with a waiver:

If you are eligible for a waiver, it’s important that you collect any supporting documents or evidence you may need. Adding supporting documentation, showing evidence of links to your home country, and adding information about your family ties will be very important when applying for a waiver.

For example, if you have been rejected under the INA section 214(b), your new application must show evidence of significant changes to address your inadmissibility.  You will not be able to submit a waiver if you are rejected under this section but you can improve your application and apply again. An applicant applying for a non-immigrant visa may be rejected under this section because the processing officer is not confident that the applicant intends to return to their home country.

Note: Contact Cohen Brosh Law offices for support in submitting a strong waiver application. Our office submits a letter with legal argumentation and evidence supporting the granting of a waiver for our clients.

You have the option of submitting a letter with your waiver application. This would be a great place to talk about your ties to your home land and explain why you should receive the waiver. It is important that you attempt to provide as much proof as possible for why you should be admissible.

Step 3: Waiver Decision:

The decision for your waiver request will be sent to you in the way that you applied. If you applied online, it will be sent electronically.  If you have been approved, you will be sent forms to be carried with you. You must present these forms at the port-of-entry.

If you have been approved for a waiver, you cannot be inadmissible for the reason that you received a waiver for. You can, however, still be denied entry if you do not comply with any other entry criteria. For example, during the COVID-19 pandemic, those who have been in any country that has a current travel ban within 14 days of attempting to enter the US, will be turned away.

Rejected Waivers

If your waiver request is denied, there are certain cases where the decision can be appealed. The officer will specify the reasons for the denial which will include information on whether or not the applicant can apply for an appeal. You will be given notice if your decision is unappealable. You may also be able to file a motion to reopen or reconsider. If the appeal is approved, the officer will reevaluate the waiver application as if for the first time.

Applying for Waivers: Forms

It’s important that you submit the correct waiver form for your situation. The most common forms are listed below, you can also review the USCIS website to review all forms. All applications are first reviewed for completeness, it is very important that your application does not get delayed for a simple mistake such as missing information.

Note: Be sure to review your application multiple times for completeness, or we can do it for you!

Most Common Forms for Waiver of Grounds of Inadmissibility:

  • Form I-601 – Application for Waiver of Grounds of Inadmissibility
    • If applying from outside of the United States
  • Form I-601A- Application for Provisional Unlawful Presence
    • If applying from within the United States
  • Form I-602- Application for Refugee for Waiver of Inadmissibility Grounds
  • Form I-192- Applications for Advance Permission to Enter as a Non-Immigrant
  • Forms I-212 – Application for Permission to Reapply for Admission to the United States After Deportation or Removal (if applicable)

 

Waiver Form I-601- Application for Waiver of Grounds of Inadmissibility

Aliens applying with this waiver form will be applying from outside of the US. Aliens applying for immigration and some non-immigration applications are eligible to use this form. Review the instructions for application of this form to ensure you can use it. This form can be used for most of the common inadmissibility factors.

 

Waiver Form I-601A- Application for Provisional Unlawful Presence

Foreign nationals who have previously entered the US legally can use this form. Applicants must have immediate family that have green cards or citizenship. This form is to be used by those who have over 180 days of unlawful presence in the US and wish to apply for an immigrant visa. If you believe you would be eligible with the unlawful presence being the only issue, this form may be for you.

Applicants who are currently in removal proceedings, cannot apply for this waiver. Those who are in the US who are eligible for immigration must apply, and then attend an interview at an embassy in their home country. Some applicants, who have more than 180 days of unlawful presence, may fear that they will not be allowed back into the US or that their application will be rejected for that reason. This waiver would excuse the unlawful presence and judge your application for merit.

You must provide sufficient reasons for why you remained in the US, and include any negative outcomes that may arise if your application is rejected. This can include damages to your family member, who is in the US legally.

 

Waiver Form I-192- Applications for Advance Permission to Enter as a Non-Immigrant

This waiver form is for applicants who are applying to come to the US as a nonimmigrant alien. This means that you would be getting permission to be in the US temporarily. You would use this form to apply before travelling and would be getting permission in advance of travelling. You must already be in possession of all relevant documents.

 

Waiver Form I-212- Application for Permission to Re-Apply for Admission into the US

Aliens who have previously been ordered removed within the last 5 years (in some cases within the past 20 years) are inadmissible. Even if you voluntarily left the country, you are still inadmissible if there was a removal order in place. The INA allows a waiver option for foreign nationals in this position. This waiver form is a request for permission to reapply for legal permission to enter the US. An approved I-212 waiver does not mean that you can travel to the US. If you only have an approved I-212 alone, you are still inadmissible until you apply for permission to enter. It is only permitted to apply for admission to the US.

How Long Will the Waiver Process Take?

It can take anywhere from 3-10 months for a foreign national to collect all supporting documents they may need and fulfill application qualifications. Once the entry waiver application is received, it can take 6-12 months for the application to be processed and for you to get a decision. Of course, issues with the application, such as missing supporting documents, can extend the processing time. If the processing officer needs to ask you for more information, they may not be able to get back to your application right away and this can extend the processing time further.

The volume of applications will also extend the processing time and therefore it is possible that it can take over a year. It is important that you be sure to address any possible questions or concerns that an immigration officer might have in your initial application to save time.

Waiver Application Fee

A waiver costs $930 USD. This is the cost in addition to any initial applications that are rejected.

USCIS offers a filing fee waiver in very special cases. If you are experiencing financial hardships or unexpected circumstances and cannot pay application fees, you can send a Request for Fee Waiver (Form I-912).

General Application Fees:

Non-Immigrant Visa Application Feesin US Dollars

Non-petition-based visa

Visitor visa, student, etc.

160

Petition- Based Visa

Temporary workers, athletes, artists, religious workers, intra company transfers

190

Biometrics

Per person

85

 Note: You may experience other costs related to your application such as obtaining medical records, criminal records, etc.

Conclusion

Being inadmissible to the United States can be very frustrating- fortunately, there are resources for those in that position. Foreign nationals can apply for waivers to try to gain admissibility. An experienced immigration professional can assist foreign nationals who may not be eligible for admittance into the US due to things like criminal history to find a pathway in which they may be eligible. Foreign nationals are refused entry to the US all the time but proper knowledge and a strong application can help to give you the best chance to gain entry. Review our list of common reasons for inadmissibility or refusal of entry to ensure that you do not fall into any of these categories, or contact us at Cohen Brosh today!

Cohen Brosh Law Offices

 

156 Menahem Begin street, 26th floor, Tel Aviv 6492109, Israel

Tel: 053-7471900

From USA: 347-436-7672

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