In addition to meeting all the requirements of a visa, individuals must be “admissible” to the United States.
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Expats and their employers who have experienced the U.S. immigration system or overseas consular processing know that the journey to the United States involves more than the ability to obtain a visa. Foreign-born individuals must also be “admissible” to the United States. Likewise, foreign-born workers who are already within the United States on a temporary basis (such as H-1B visa holders) but who seek permanent residency status (a “green card”) must also be admissible.
As a result, when U.S. talent mobility professionals screen prospective talent for stateside employment opportunities, they are encouraged to—early in the process—also include questions that will identify potential problems with the employee’s admissibility to the United States. Even a few additional screening questions on admissibility can save the employer and mobility professional significant time and costs. This is because a prospective hire might satisfy all the educational and professional requirements for a visa, but a consular officer might deny the visa if the individual is inadmissible to the United States. And, even if the employee receives a visa, if upon landing at a U.S. airport, the immigration inspector determines that the employee is inadmissible to the United States, the employee might be denied entry and even detained at the airport.
The employer will want to know as soon as possible (and, prior to paying significant attorney’s fees and government filing fees) whether it could find itself in such a situation. And, if the possibility exists, the employer and mobility professional will be in a better position to consider (in advance) whether a waiver of inadmissibility is available to the proposed talent, seek legal advice on the viability of such a waiver and indeed the likelihood of inadmissibility in the first instance, and determine whether they would be willing and able to hold a position while the employee pursues such a waiver (assuming, of course, that a finding of inadmissibility is actually made by a consular or immigration official).
This article explores the broad categories of inadmissibility under the Immigration and Nationality Act and is intended to provide the mobility professional with possible screening questions for global talent. Some of these rules might seem obvious to you. Others are not as well-known, but their consequences are nonetheless just as severe.
Background on Admissibility
As a preliminary matter, U.S. citizens are always admissible to the United States. The laws discussed in this article apply primarily to visitors and, under limited circumstances, to lawful permanent residents.
The rules for admissibility appear in a United States statute known as the Immigration and Nationality Act (INA), which passed in 1952 and has been amended several times since. The INA does not actually define admissibility but rather lists various acts (or non-acts) that could make someone “inadmissible” to the United States. Put simply, individuals must demonstrate that they have not done something that the United States thinks is significant enough to refuse such individuals entry into the country, or to deny them a green card.
Individuals who are found to be inadmissible will need to file costly waiver applications, assuming a waiver is available for their particular ground of inadmissibility.
With respect to intending immigrants, that is, foreign-born individuals who plan to relocate permanently, the United States will not admit, nor issue a green card to, anyone with a “communicable diseases of public health significance,” including, for example, tuberculosis, hepatitis, and certain sexually transmitted diseases. In addition, intending immigrants with a physical or mental disorder that present a danger to the safety or welfare of others can be inadmissible. And those with a drug or alcohol addiction may also find that they need a waiver of inadmissibility. Vaccinations (including the COVID-19 vaccination) are also required for those intending to make the United States their permanent home. A full list of the required vaccinations for an immigrant visa appears at the U.S. Department of State’s website.
Individuals who have been arrested or convicted of a crime anywhere in the world should always—prior to applying for a temporary visa or permanent residency—confirm that their prior contact with law enforcement will not trigger a finding of inadmissibility.
But not all criminal activity is the same. The type of offense charged will matter, but so will the timing of the offense (did it happen six months versus 10 years ago?), the type of sentence (was it probation or prison time?), and the length of any sentence. Sometimes, a conviction isn’t even necessary for a finding of inadmissibility. For example, if a U.S. consular officer “has reason to believe” that a visa applicant has been a trafficker in controlled substances, that belief (provided it is supported by evidence) may be the basis for denying a visa application or refusing someone entry into the United States.
Anyone with a criminal history, no matter how extensive, could gain insight into their ability to travel to the United States by consulting with an immigration attorney, particularly one experienced in the intersection between criminal law and immigration law, a subset of immigration sometimes referred to as “crimmigration.”
Not surprisingly, anyone suspected of entering the United States to engage in espionage or the illegal exportation of sensitive information; who is a member of a terrorist organization; who has engaged in (or intends to engage in) terrorist activity; or who has provided “material support” to a terrorist is inadmissible to the United States.
U.S. citizens and permanent residents, and certain employers, who sponsor foreign-born relatives and employees for immigration to the United States must demonstrate to the U.S. government that the green card applicant will not become a “public charge” in the United States. That is, the individual immigrating to the United States must appear unlikely to ever have to need to receive cash-based benefits from a federal, state, or local government that is directly tied to income that is close to the poverty level. In the absence of such evidence, the visa or green card might be denied.
The financial sponsor must file an “Affidavit of Support,” a contract with the United States in which the sponsor agrees to reimburse the government in the event the sponsored immigrant receives a green card.
Fraud and Misrepresentation
Anyone who has ever, through fraud or willfully misrepresenting a “material” fact when seeking an immigration benefit, is inadmissible. The term “material” has a special legal definition, but generally, if the thing that was misrepresented might have caused the decision-maker of the application to ask the applicant further questions about the matter, there is a good chance that the fact was important enough to be material. Here, it is important to note that the misrepresentation might appear on a written application but could also be found in an individual’s answers to questions asked by a consular officer, at an airport before an inspector, or during an immigration interview in connection with any immigration benefit.
While fraud and misrepresentation are types of immigration violations, other immigration violations, such as overstaying one’s visa in the past, can also make someone inadmissible when they attempt to reenter the United States. It is also a violation to have the wrong kind of visa for the true purpose of coming to the United States, as in the case of an individual who uses a B-2 tourist visa to enter the United States but who intends to remain permanently.
One type of immigration violation that results in especially harsh consequences is unlawful presence. The unlawful presence ground of inadmissibility is triggered when an individual falls out of status (by overstaying a visa or by illegally entering, and remaining in, the United States) and subsequently departs from the United States. The time spent out of status is known as “unlawful presence.” When someone accrues at least 180 days of unlawful presence and then departs from the United States, the departure triggers a bar to admissibility for three years. When someone accrues at least one year of unlawful presence and then departs from the United States, the departure triggers a bar to admissibility of 10 years. The individual will not be able to return lawfully to the United States unless a successful waiver application is filed.
Another immigration violation with severe consequences is when an individual falsely claims to be a U.S. citizen. Inadmissibility may be presumed if a non-citizen tries to vote in a U.S. election or claims U.S. citizenship on a Form I-9 for a new employer. There are no waivers of inadmissibility for falsely claiming U.S. citizenship.
A Note About Waivers of Inadmissibility
The subject of waivers is just as broad and complex as are grounds of inadmissibility. Waivers are applications that request a kind of forgiveness from the U.S. government for the ground of inadmissibility. Different grounds of inadmissibility require different types of waivers (each with a different set of requirements), and, as noted above, in the case of falsely claiming U.S. citizenship, some grounds of inadmissibility cannot be waived.
While the topic of admissibility to the United States can initially appear onerous, the benefits achieved by initially screening for possible issues with prospective talent can pay dividends. When in doubt, the employer and mobility professional can find peace of mind discussing their unique circumstances with an experienced immigration attorney or other trusted professional. And in doing so, they can rest easier knowing they don’t have anything to worry about, or begin preparing for Plan B. Under either scenario, global talent can position themselves one step closer to beginning their lives in a new country filled with opportunity.
Sherry Nohara is a managing attorney at Noha Immigration Law LLLC. She can be reached at firstname.lastname@example.org.
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