Grounds of Inadmissibility

Grounds of Inadmissibility

Individuals who are seeking entry into the United States or who are applying for an immigration benefit to remain in the United States must demonstrate that they are not inadmissible to the United States.   Congress has set forth numerous grounds of inadmissibility, which if applicable to an individual, make the individual ineligible for many immigration benefits.   Some grounds of inadmissibility may be waived, but for other grounds of inadmissibility, no waiver is available.    If a waiver is granted, then the individual will not be barred from receiving the immigration benefit which s/he is seeking.    

 

If you believe that you may be subject to a ground of inadmissibility, you should consult with an attorney before filing for any immigration benefits.   Ms. Ziemba has substantial experience in assessing whether an individual is subject to any grounds of inadmissibility and has successfully represented many immigrants seeking waivers for any applicable grounds of inadmissibility.  We would be glad to conduct a detailed consultation to assess whether you are subject to any grounds of inadmissibility and advise you on your eligibility for a waiver.  

 

For a detailed chart of all of the grounds of inadmissibility and waivers available under the Immigration and Nationality Act, please click here: http://www.state.gov/documents/organization/86933.pdf.  Some of the most common grounds of inadmissibility include convictions for certain criminal offenses, previous immigration violations including prior deportations from the United States, and fraud or misrepresentation in seeking to obtain an immigration benefit.  For more detailed information on these grounds of inadmissibility, please click on the applicable tab below.

 

 For information on waivers of inadmissibility, please see the section on our website titled Waivers of Inadmissibility. 

 

Criminal Grounds of Inadmissibility

Individuals who have been convicted of or admit to having committed certain crimes are inadmissible to the United States.    Foreign nationals who have been convicted of or who have admitted committing either 1) a crime involving moral turpitude or 2) a crime relating to a controlled substance as defined by federal law are inadmissible.  

 

Congress has not specifically defined what constitutes a crime involving moral turpitude.  Determining whether a particular crime is a crime involving moral turpitude often involves a complicated analysis of the particular statute involved as well as case law from both state and federal courts.  Some examples of crimes involving moral turpitude include murder, rape, arson, robbery, theft, any crime involving fraud, and child abuse.     

 

Under certain circumstances, a conviction for a crime involving moral turpitude will not make an individual inadmissible.  If an individual was under the age of 18 at the time the crime was committed  and the crime occurred more than five years before  an application for an immigration benefit was made, the individual will not be inadmissible based upon that crime. In addition, this inadmissibility ground will not apply if the individual only has one conviction for a crime involving moral turpitude, the maximum possible penalty for that crime did not exceed imprisonment for one year, and the individual was not sentenced to a term of imprisonment in excess of six months.  This exception is commonly known as the petty offense exception.

 

Other criminal grounds of inadmissibility include convictions of two or more offenses for which the aggregate sentences to confinement were five years or more, trafficking in controlled substances, prostitution, human trafficking, money laundering, and terrorism including providing financial support to terrorist organizations.

 

Some criminal grounds of inadmissibility may be waived by the government.  For information on the requirements for obtaining a waiver of inadmissibility, please see the Waivers of Inadmissibility section on our website.  

 

If you have been convicted of a crime either in the United States or in another country, it is very important that you consult with an attorney prior to filing any applications for an immigration benefit.   In addition if you are not a citizen of the United States and currently have criminal charges pending against you, you should consult with an immigration attorney before accepting any plea offers to assess the potential immigration consequences of your plea.  

Immigration Violations and Fraud

Individuals who have previously violated U.S. immigration laws or who have committed fraud or misrepresented material information to U.S. immigration officials when seeking an  immigration benefit are inadmissible to the United States.   

 

A.  Unlawful Presence

Perhaps the most common ground of inadmissibility applicable to individuals seeking an immigration benefit is unlawful presence in the United States.   Unlawful presence is defined as any period of presence in the United States after an individual enters without inspection or permission as well as any period of presence in the United States after an individual’s authorized period of stay in the United States has expired.  

 

Individuals who were unlawfully present in the United States for a continuous period of at least 180 days but less than 1 year and who voluntarily departed the United States prior to removal proceedings being instituted against them are inadmissible to the United States for a period of 3 years from the date of their departure from the United States.  Individuals who were unlawfully present in the United States for a continuous period of a year or more and who subsequently depart the United States will be inadmissible for a period of ten years.  These are commonly known as the 3/10 year bars.  Individuals who accumulate more than one year of unlawful presence cumulatively, depart the United States, and then re-enter or attempt to re-enter the United States without permission will be permanently inadmissible to the United States.  This is commonly known as the permanent bar.  

 

It is important to note that these bars only apply to someone who was unlawfully present and then leaves the United States.  Individuals who never leave the United States after accumulating unlawful presence will not be subject to these grounds of inadmissibility.  However, since many individuals may only apply for certain immigration benefits through a U.S. consulate outside of the United States, this ground of inadmissibility is very common.

 

There are several exceptions to the definition of unlawful presence.  Any period of time an individual is present without permission or after an authorized period of stay has expired while under the age of 18 will not be considered when determining an individual’s period of unlawful presence for purposes of the 3 and 10 year bars. Please note that this exception does not apply to individuals under the age of 18 who are subject to the permanent bar. Therefore, individuals under the age of 18 who are present without permission or after an authorized period of stay has expired should depart the United States within six (6) months after his/her 18th birthday in order to avoid being inadmissible due to unlawful presence.  In addition, any period of time during which an individual has a bona fide application for asylum pending will not be counted towards unlawful presence unless the individual has worked without permission at any time while the application is pending.  

 

Individuals who are subject to the 3/10 year unlawful presence bars may be eligible for a waiver that would permit them to overcome the 3 or 10 year wait period for an immigration benefit.  An individual subject to the permanent bar may qualify to apply for a waiver to return to the United States after being outside of the United States for a period of ten years.  For information on the requirements for eligibility for a waiver, please click here.

 

B. Fraud/Misrepresentation
1.  Fraud/Misrepresentation in Seeking an Immigration Benefit

Individuals who commit fraud or misrepresent a material fact in order to obtain a U.S. immigration benefit are inadmissible to the United States.  A material fact includes any information which, if truthfully disclosed to U.S. immigration officials, would either make the person ineligible for the benefit sought or would lead to the discovery of information that would make the individual ineligible for the benefit.  Examples of material misrepresentations include failing to disclose that one is married when seeking a benefit available only to single children, failure to disclose prior criminal convictions that would make someone inadmissible, or failure to disclose prior immigration violations.  

 

This ground of inadmissibility only applies to fraud or misrepresentation committed in the process of seeking an immigration benefit.  It does not apply to situations where an individual has fraudulently obtained other benefits, such as a driver’s license in the name of another individual or using false documents to obtain employment.  However, other grounds of inadmissibility, including criminal grounds, may apply to such situations.  

 

A waiver of this ground of inadmissibility may be available.  For information on the requirements for eligibility for a waiver, please click here. 

 

2.  False Claims to U.S. Citizenship

Individuals who falsely represent themselves to be U.S. citizens for any purpose or benefit under any Federal or State law are inadmissible.  This ground of inadmissibility is much broader than the fraud/misrepresentation ground and is not limited only to representations to immigration officials when seeking an immigration benefit.   Examples of false claims to citizenship that would make an individual inadmissible include representing oneself as a U.S. citizen when applying for federal student loans or other government benefits, unlawful voting in federal or state elections, or claiming to be a U.S. citizen in order to obtain in-state tuition at a public university or community college.  

 

This ground of inadmissibility does not apply to certain individuals who have resided permanently in the United States before the age of 16, whose parents are or were U.S. citizens, and who reasonably believed they were U.S. citizens at the time of making the false representation.  Unfortunately, there is no waiver of inadmissibility available to someone who has made a false claim to citizenship that does not fit within this exception.  However, this ground of inadmissibility only came into existence on September  30, 1996.   Therefore, individuals who made false claims to citizenship before September 30, 1996, will not be subject to this ground of inadmissibility.  However, if the false claim was made in order to obtain an immigration benefit, the individual may still be inadmissible due to fraud or misrepresentation.   

 

Prior Removals

Individuals who have been previously ordered removed from the United States are inadmissible and are subject to various penalties.  Individuals who were caught by U.S. immigration officials when trying to enter the United States without permission or who were otherwise placed into removal or deportation proceedings at the time of their arrival in the United States and who were subsequently ordered removed are inadmissible for a period of 5 years from the date of their removal from the United States.  Individuals who are placed into removal proceedings at any time other than at the time of their arrival and who are ordered removed are inadmissible for 10 years from the date of the person’s departure from the United States.  Individuals with a second or subsequent order of removal are inadmissible for 20 years from the date of their removal.   Individuals subject to an order of removal who have been convicted of an aggravated felony are permanently inadmissible.  

 

These grounds of inadmissibility are only triggered by an individual’s departure from the United States after entry of an order of removal.  Therefore, the period of inadmissibility only begins from the date of the individual’s departure from the United States, not from the date of the entry of the order of removal.

 

A waiver of inadmissibility may be available to allow an individual to return to the United States sooner.  For information on the requirements for a waiver of inadmissibility, please click here.