Are you 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. These scenarios can happen when attempting to enter or apply for a visa to the United States. Refusal of entry can seem impossible, but we here at Cohen Brosh Law Offices can help! Keep reading to learn 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 part of the United States Code, 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 immigration system that had been in place since the 1920s. The INA, as it stands now, is divided into five 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 gives said aliens the right to live, work, study, or become citizens in the United States. The section of the US code also bars certain foreign nationals, making them 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 extensive and involves many waivers; we recommend consulting with an immigration professional when considering immigration to the United States. Contact us today!
In fiscal year 2017, more than 1 million new permanent residents entered the United States. About half of that number are foreign nationals newly arriving in the country. 45% of those new permanent residents were immediate relatives of US citizens. 12% of these PRs were through employment-based immigration.
In the same year, 2017, over 77 million foreign nationals were admitted to the US as non-immigrants. That is an enormous number and includes a variety of reasons for travel. This would include temporary foreign nationals entering the US for tourism, study, work, visiting friends and family, etc. Though most visitors in the category were for tourism or pleasure, 10% were for work, and 5% were 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 allowed you into the country at a port of entry. Border patrol officers can turn away any foreign national they consider inadmissible, even if they have a visa. They can use their gut instinct when inspecting foreign nationals at the border. Being turned away at the border is a common occurrence. Therefore, you must ensure that you have all of your required documents and are adequately prepared when attempting to enter the country. Fortunately, if you are inadmissible, there are other pathways to apply.
Note: Keep reading to learn about waivers for those who may be inadmissible!
Tipes 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 to stay in the United States indefinitely or for a temporary and short period. This is the difference between an immigrant and a 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 significant factor. The U.S. has several visas, and you must ensure that you apply for the correct visa that matches your entry purpose.
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, 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, superior work skills, or various 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 temporarily. 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 for which you were initially admitted. 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 change their status later, 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 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 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 can apply for an extension. The visa is void if you do not apply for an extension within a reasonable time or leave the country before the visa expires. Aliens with an expired visa are considered ‘overstaying.’ Those 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 the USA
Being unlawfully present in the US is when you are in the United States without permission. This can be due to overstaying the period of your visa or entering the country illegally. A CBP officer must inspect all aliens at a US entry port. 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 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 cannot 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 in 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 voluntarily 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 cannot apply to enter the US. Depending on the visa type you seek (immigrant or nonimmigrant), you may be able to apply for a waiver or permission to apply. In these cases, applicants must submit a solid case 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
US 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 permission to enter the US, like a visa. Though this does not guarantee entry, the CBP officers are responsible for thoroughly inspecting every alien before granting entry. They have the right to make decisions at their 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 US. Their applications for visas or green cards can also be denied due to inadmissibility. However, foreign nationals living in the US can later be inadmissible. Being aware of the categories of inadmissibility can help you submit a more vital 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 US Federal Code are for protecting the public. For example, the health, criminal grounds, and security categories directly affect the health and security of the American population. From this perspective, the CBP officers inspect immigration applications, aliens requesting entry at a port of entry, and aliens currently living in the US.
Common Reasons for Inadmissibility
- Medical Issues
- Criminal Record
- Missing documents at port-of-entry
- Travel bans on your country
- Lying on the application or to a CBP officer
- Suspicious content on your devices or social media
- 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 prove 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 travelers with a contagious disease that could risk general public health. Foreign nationals are responsible for proving 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 they are fully vaccinated against COVID-19 might not be admitted into the country. All aliens must ensure they are vaccinated and can present proof of a negative COVID-19 test when arriving at the entry port. There are several exceptions to the current COVID-19 policy. 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. 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 US. This includes crimes related to drug trafficking, prostitution, money laundering, etc. There are some exceptions in this category. For example, if a person commits a crime for which the maximum conviction is less than a year and the alis is only required to serve 6 months or less, 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 US 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 US. Even if you have submitted all your supporting documents before travel and have been approved for a visa, you may still need to produce those documents at the border. CBP officers conduct complete inspections of all travelers and will often request documents like medical documents.
Most aliens will not be accepted into the US 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 US 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 US.
Countries with current travel Bans: Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe.
Lying to immigration or CBP officer
Foreign nationals are eager to be admitted to America and may be tempted to exaggerate or lie, but this is a severe 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 the USA
Foreign nationals caught working illegally in the United States are inadmissible to the country. Removal proceedings will be initiated against them, and they will face deportation. Working in the US as an alien without a work permit or permission violates the admissibility criteria.
Some aliens may be refused entry because a CBP officer may suspect 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 the home country
How to Cancel the Entry Ban: Waivers
Specific categories of inadmissibility offer waivers that foreign nationals can file. Applying for this waiver will be a request to excuse you from specific 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 apply for reconsideration of the finding of inadmissibility. This also depends on the circumstances.
Applying for Waivers: Process
The type of refusal you previously received may determine whether you can return to the US. Your reason for travel will also be considered when your waiver application is reviewed. You must make a case and prove that you qualify for the waiver. Given the legal guidelines, you can review the U.S. Federal Code to determine the best way to make a case for yourself.
Note: Foreign nationals may benefit from seeking professional advice because the admission categories for aliens’ documents are extensive.
Step 1: Submit the 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 your rejection. 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. If rejected under this section, you cannot submit a waiver but can improve your application and apply again. Applicants applying for a non-immigrant visa may be rejected under this section because the processing officer is not confident they intend to return to their home country.
Note: Contact Cohen Brosh Law offices to support submitting a solid 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 discuss your ties to your homeland and explain why you should receive the waiver. You must 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 on how you applied. If you apply 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 because you received a waiver. 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 in any country with 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, including information on whether 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
You must submit the correct waiver form for your situation. The most common forms are listed below. You can also review the USCIS website to see all the forms. All applications are first reviewed for completeness. Your application mustn’t get delayed for a simple mistake such as missing information.
Note: 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 apply outside the US. Aliens applying for immigration and some non-immigration applications can use this form. Review the instructions for applying for 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 members with green cards or citizenship. This form will be used by those with over 180 days of unlawful presence in the US who 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 in the US and eligible for immigration must apply and then attend an interview at an embassy in their home country. Some applicants who have been in the US for more than 180 days may fear that they will not be allowed back into the US or that their application will be rejected. This waiver would excuse the unlawful presence and judge your application for merit.
You must provide sufficient reasons for remaining in the US and include any adverse outcomes that may arise if your application is rejected. This can include legal damages to your family member in the US.
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 you would be getting permission to stay in the US temporarily. You would use this form to apply before traveling and would be getting permission in advance of traveling. You must already own 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. The INA allows a waiver option for foreign nationals in this position. This waiver form requests permission to reapply for legal permission to enter the US. An approved I-212 waiver does not mean 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. Only those who apply for admission to the US are permitted.
How Long Will the Waiver Process Take ?
It can take 3-10 months for a foreign national to collect all necessary supporting documents 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, which can extend the processing time further.
The volume of applications will also extend the processing time, and it is possible that it will take over a year. To save time, it is important that you address any possible questions or concerns that an immigration officer might have in your initial application.
Waiver Application Fee
A waiver costs $930 in addition to any rejected initial applications.
USCIS offers a filing fee waiver in exceptional 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 Fees | Amount |
|---|---|
| Non-petition-based visa: Tourist visa, Student visa, 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 or criminal records.
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. Experienced immigration professionals can assist foreign nationals who may not be eligible for admittance into the US due to criminal history in finding a pathway in which they may be eligible. Foreign nationals are always refused entry to the US, but proper knowledge and a robust application can 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!