Grounds of Inadmissibility under U.S. Immigration Law

Contents

Do-Not-EnterTo be issued a visa and admitted to the U.S. at a port of entry, a foreign national must generally not fall within a list of classes of persons who are to be prohibited entry to the U.S. This list is known as the “grounds of inadmissibility.”

The grounds can be divided into the following categories:

  1. Medical-related grounds.
  2. Crime-related grounds.
  3. Security-related grounds.
  4. Public charge grounds.
  5. Labor certification and requirements for physicians and health-care workers.
  6. Illegal immigrants and immigration law violators.
  7. Documentary requirements.
  8. Draft evaders.
  9. Persons previously removed or unlawfully present in the U.S.
  10. Miscellaneous grounds.
  11. Prior J-1 exchange visitors subject to the two-year foreign residence requirement.

There are exceptions to these grounds, and the grounds may be waived in certain cases. Our law firm’s clients should inform us as early as possible with any concerns about inadmissibility so that we can analyze these issues. For general questions or comments, please feel free to use the comments section below.

1. MEDICAL-RELATED GROUNDS

The medical grounds of inadmissibility apply to both immigrants and nonimmigrants, except as specified below. However, only immigrants and K visa applicants are routinely required to have a medical exam.

Communicable Diseases

Persons having communicable diseases of significance to the public health are inadmissible.[1] This includes:[2]

  • Chancroid
  • Gonorrhea
  • Granuloma inguinale
  • Leprosy (infectious)
  • Lymphogranuloma venereum
  • Syphilis (infectious)
  • Tuberculosis (active)

Hepatitis is not on the list, and HIV has been removed from the list.

Proof of Vaccination

This ground applies only to applicants for permanent resident status.

Applicants are inadmissible if they fail to present documentation of their vaccinations against vaccine-preventable diseases, including mumps, measles, rubella, polio, tetanus and diphtheria toxoids, pertussis, influenza type B and hepatitis B, and any other vaccinations against vaccine-preventable diseases recommended by the advisory committee for immunization practices.[3]

Physical or Mental Disorders

Persons are inadmissible if they now have or in the past have had (if likely to recur or lead to harmful behavior) a physical or mental disorder and a history of behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the person or others.[4]

Alcohol abuse or dependence counts as such a disorder, if there is a history of associated harmful behavior. A conviction for driving while intoxicated has been interpreted as constituting evidence of such behavior. The doctor must specifically assess this potential ground of inadmissibility for an applicant with a single alcohol-related arrest or conviction (including driving while intoxicated) within the last 5 years or multiple such arrests or convictions within 10 years.[5]

Drug Abusers and Drug Addicts

A person who is determined to be a drug abuser or drug addict is inadmissible. Drug abuse is defined as the non-medical use of a controlled substance, even if the use has not resulted in physical or psychological dependence.[6] This may even include the one-time use of marijuana or cocaine.

2. CRIME-RELATED GROUNDS

Crimes Involving Moral Turpitude

Persons who have been convicted of, or who admit to having committed[7] a crime involving moral turpitude, other than purely political offenses, are inadmissible.[8] An attempt or conspiracy to commit such a crime is included in this ground.

Moral turpitude refers to conduct which is inherently base, vile or depraved, contrary to the accepted roles of morality and the duties owed between persons, either a particular person or society in general. Neither the seriousness of the offense or the severity imposed determines whether or not a crime involves moral turpitude.

The most common elements which make a crime moral turpitude include fraud, larceny, or an intention to harm a person or thing.[9]

Political offenses are not included in this ground of exclusion. Political offenses are generally considered to be acts taken with others as a part of war, insurrection or rebellion in an attempt to replace the legal authority.

Crimes Involving Controlled Substances; Controlled Substance Traffickers

Persons who have been convicted of, or who admit to having committed, or who admit to committing acts which constitute the essential elements of a violation or conspiracy to violate any law or regulation of a State, the United States or a foreign country relating to a controlled. An attempt or conspiracy to commit such a crime is included in this ground of inadmissibility.[10]

An person who a consular or immigration officer knows or has reason to believe is or has been an illicit trafficker in a controlled substance or is or has been a knowing assister, abettor, conspirator or colluder with others in the illicit trafficking of a controlled substance is inadmissible (even in the absence of a conviction or admission of a crime).[11]

Multiple Criminal Convictions

A person who has been convicted of two or more offenses (other than purely political offenses), regardless of whether or not the convictions arose from a single trial or arose from a single scheme of conduct involving moral turpitude and whether or not the offenses involved moral turpitude, is inadmissible if the aggregate sentence of confinement actually imposed is five years or more.[12]

Prostitution and Commercialized Vice

A person is inadmissible if he or she:

  • is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of the application for a visa, entry or adjustment of status;
  • directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, entry, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10 year period) received, in whole or in part, the proceeds of prostitution; or
  • is coming to the U.S. to engage in any other unlawful commercialized vice, whether or not related to prostitution.[13]

3. SECURITY-RELATED GROUNDS

In General

A person is inadmissible if a consular officer or immigration officer knows or has reasonable grounds to believe the person seeks to enter the U.S. to engage solely, principally or incidentally in the following[14]:

  • any activity in violation of any law of the U.S. relating to espionage or sabotage;
  • any activity that violates or evades any law prohibiting the export from the United States of goods, technology or sensitive information;
  • any other unlawful activity. (includes noncitizens known or believed to be active members of known criminal organizations (including the Russian Mafia, Italian Mafia, Mexican Mafia, and Asian Triad societies) or members of organized street gangs (such as MS-13 and other Central American and Mexican gangs)[15];
  • any activity the purpose of which is the opposition to, or the control or overthrow of, the U.S. Government by force, violence or other unlawful means.

Failure to Comply with NSEERS Departure Requirements

The National Security Entry-Exit Registration System (NSEERS), also known as Special Registration, tracks certain nonimmigrants as they enter and depart through U.S. Currently, NSEERS covers certain citizens or nationals of state sponsors of terrorism (Iran, Iraq, Libya, Sudan, and Syria), plus other individuals specifically designated by the State Department or Department of Homeland Security.

Covered individuals must report in person to an immigration officer upon departing the country. And they must notify DHS of changes of address, employment, or school.

Any covered individual who fails to report to an immigration officer upon departing the country is presumably inadmissible.[16]

Terrorist Activity

A person is inadmissible who:

  • has engaged in a terrorist activity;
  • who a consular officer or immigration officer knows or has reasonable grounds to believe is likely to engage after entry in a terrorist activity; or
  • has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity.

“Terrorist activity” includes violation of foreign law that, if committed in the U.S. would have violated State or Federal law related to hijacking, hostage-taking, a violent attack upon an internationally protected person, an assassination, the use of any biological, chemical or nuclear weapon or device, or a threat, attempt or conspiracy to do any of these acts.[17]

Foreign Policy

A person will be inadmissible if the Secretary of State believes, based on reasonable grounds, that his or her entry or proposed activity in the U.S. would have potentially serious adverse foreign policy consequences.[18]

Membership in the Communist Party or a Totalitarian Party

This ground applies only to applicants for permanent resident status.

Persons who are or have been members of, or are affiliated with the Communist party or proscribed domestic or foreign organizations, are inadmissible unless the membership or affiliation terminated either two years before the date of visa application, or five years before the date of visa application in the case of a person whose membership or affiliation is with a party controlling a totalitarian dictatorship.

An exception is provided for immigrants whose membership or affiliation is or was involuntary, under the age of 16, by operation of law, to provide the essentials of living, or non-meaningful.

In the case of immigrants who have the requisite family relationship with a U.S. citizen or permanent resident, the Department of Homeland Security (DHS) may waive ineligibility in order to assure family unity, for humanitarian purposes, or otherwise when in the public interest.

Participants in Nazi Persecutions or Genocide

Nazis and their allies who participated in persecution between 1993 and 1945 are inadmissible.

A person who has engaged in conduct that constitutes genocide for the purposes of the International Convention on the Prevention and Punishment of Genocide is inadmissible.[19]

4. PUBLIC CHARGE GROUNDS

A person who is likely to become a public charge is inadmissible. A public charge is a person who relies primarily on the U.S. Government to provide cash assistance for income maintenance or to pay for long-term care. The government will take into account the person’s age, capacity to earn a living, health, family circumstances, employment history, whether or not the person has ever received public assistance, and other factors.[20]

Affidavit of Support

This ground applies only to applicants for permanent resident status.

Most persons immigrating through a family-sponsored petition must obtain a legally binding affidavit of support as a condition of admission. Also, in any employment-based case where the petitioner is a relative of the beneficiary, or an entity in which a relative has a significant ownership interest, the petitioner must provide an affidavit of support.[21]

The law makes affidavits of support legally enforceable for at least 40 qualifying quarters (in effect, 10 years) or until the beneficiary has become a U.S. citizen.

Sponsors signing the affidavit must be at least 18 years old, domiciled in the U.S., and able to support both the sponsor’s household—including the immigrant—at an annual income level equal to at least 125 percent of the federal poverty guideline.

An exception exists for active duty service members petitioning for their spouse or child, who may qualify if they are able to support the sponsored immigrant at 100 percent of the poverty guideline.

Sponsors must notify the USCIS whenever they move during the effective period of the affidavit, and are subject to monetary penalties for non-compliance.

5. LABOR CERTIFICATION AND REQUIREMENTS FOR PHYSICIANS AND HEALTH CARE WORKERS

Labor Certification

This ground applies only to applicants for permanent resident status.

A person seeking to immigrate in the employment-based, 2nd or 3rd preference category is inadmissible without a labor certification approved by the U.S. Department of Labor.[22] (For 2nd preference cases, certification can be waived in the national interest).

Unqualified Physicians

This ground of inadmissibility applies only to principal immigrants in the employment-based, 2nd-preference and 3rd-preference categories.

Graduates of foreign medical schools coming to perform services as members of the medical profession are not admissible as permanent residents unless they have been issued a certificate from the Educational Commission for Foreign Medical Graduates (“ECFMG”) evidencing passage of Parts I and II of the National Board of Medical Examiners Examination (“NBMEE”) or its equivalent and evidence of competence in oral and written English.

  • The NBMEE was offered 1977-1986. Examinations recognized as equivalents to the NBMEE for purposes of issuance of an ECFMG certificate include: the United States Medical Licensing Examination (“USMLE”), steps 1 and 2 (offered 1992-now); the Foreign Medical Graduates Examination in Medical Sciences (“FMGEMS”) (offered 1984-1994); and the Visa Qualifying Examination (“VQE”) (offered 1977-1986).[23]
  • To establish competence in oral and written English, a foreign physician usually must pass the ECFMG English test. A person who took the VQE in 1978, 1979, or 1981 is presumed to have met the requirement for competence in oral and written English. However, a person who took the VQE in 1977, 1982, or 1983 must present separate evidence of oral and written competence in English. The Test of English as a Foreign Language (“TOEFL”) is valid only to renew a previously issued ECFMG Certificate for a foreign medical graduate who has not entered the United States within 2 years of its issuance.[24]
  • The examination requirements do not apply to a person who has graduated from a medical school in the U.S. or a Canadian medical school accredited by the Liaison Committee for Medical Education (“LCME”).
  • Persons of “national or international renown” are exempt from the examination requirements and the English competence requirements.
  • The ground of inadmissibility is inapplicable to a graduate of a medical school who was fully and permanently licensed to practice medicine in a U.S. state on January 9, 1978 and was practicing medicine on that date. However, such persons must still establish proficiency in written and oral English.[25]
  • The ground of inadmissibility is inapplicable to foreign medical graduates seeking to enter the United States for such reasons as teaching or research involving no patient care.

Other Uncertified Health Care Workers

A person who seeks to enter the as a health-care worker, other than a physician, is inadmissible unless he or she presents a certificate from the Commission on Graduates of Foreign Nursing Schools (“CGFNS”), or another organization approved by DHS verifying the person’s qualifications, passage of any required tests, licensure (if applicable), and competence in English.

For this purpose, the term “health care worker” includes a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, and physician assistant.

6. ILLEGAL ENTRANTS AND IMMIGRATION LAW VIOLATORS

Persons Present without Admission or Parole; Stowaways

A person present in the U.S. without being admitted or paroled is inadmissible.[26] A stowaway is inadmissible.

Failure to Attend Removal Proceedings

A person who without reasonable cause fails or refuses to attend or remain in attendance at a proceeding to determine admissibility or deportability and who seeks admission to the U.S. within 5 years of such person’s subsequent departure or removal is inadmissible.[27]

Fraud or Misrepresentation

A person who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or entry or other immigration benefit is inadmissible. The determination of materiality is a fact which would make a person inadmissible or shut off a line of inquiry which may have resulted in exclusion.[28]

Any person who falsely represents himself or herself to be a U.S. citizen for any legal purpose or immigration benefit is inadmissible.[29]

Alien Smugglers

A person who at any time knowingly has encouraged, induced, assisted, abetted or aided any other alien to enter or to try to enter the United States in violation of law is inadmissible.[30]

Document Fraud

Persons who are subject to a final order for violation of section 274C (which relates to document fraud) are inadmissible.[31]

Student Visa Abusers

F-1 student status is not allowed for persons seeking to attend public elementary school or a public adult education program. Entry to attend public secondary school is permitted but only if the aggregate period of F-1 status does not exceed one year and the person reimburses the school for the costs of providing the education.[32]

A person who obtains F-1 status and who violates the above law is inadmissible until the person has been outside the United States for a continuous period of 5 years after the date of the violation.[33]

7. DOCUMENTARY REQUIREMENTS

Documentary Requirements for Persons Seeking Permanent Residence

An immigrant is inadmissible if at the time of application for admission:

  • he or she is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the DHS regulations, or
  • his or her visa has been issued without compliance with the provisions of the Immigration and Nationality Act.[34]

Documentary Requirements for Persons Seeking Nonimmigrant Status

Any nonimmigrant who is inadmissible if he or she:

  • is not in possession of a passport valid for at least six months from the date of expiration of the initial period of the person’s admission or contemplated initial period of stay authorizing the person to return to the country from which the person came or to proceed to some other country during such period; or
  • is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission.[35]

A general waiver of the visa requirement is authorized for Canadian citizens except in the case of K-1 and E-1/E-2 nonimmigrant visas.[36]

8. DRAFT EVADERS

A person who has departed from or remained outside the United States to avoid or evade training or service in the armed forces in time of war or period declared by the president to be a national emergency is inadmissible.[37]

9. PERSONS PREVIOUSLY REMOVED OR UNLAWFULLY PRESENT IN THE U.S.

Certain Persons Previously Removed

A person who has been ordered removed summarily[38] or at the end of removal proceedings initiated upon the person’s arrival in the United States and who again seeks admission within 5 years of the date of removal (or within 20 years in the case of a second or subsequent removal or at any time in the case of a person convicted of an aggravated felony) is inadmissible.[39]

Further, any other person who has been ordered removed (deported) or left the U.S. while an order of removal was outstanding and who seeks admission within 10 years of departure (or within 20 years of such date in the case of a second or subsequent removal or at any time in the case of a person convicted of an aggravated felony) is inadmissible.

Persons Unlawfully Present

Any person who has been “unlawfully present” in the United States for a period of more than 180 days but less than 1 year and voluntarily departed the United States prior to the commencement of removal proceedings, is inadmissible for a period of three years.[40] Any person who has been unlawfully present in the United States for 1 year or more is inadmissible for 10 years.[41]

Unlawful presence is defined as presence in the United States after the expiration of lawful status or presence in the United States without being admitted or paroled. For a nonimmigrant, unlawful presence typically only includes periods of stay beyond the date noted on the Form I-94, Departure Record. Unlawful presence is not triggered by a violation of status, such as by a B-2 visitor undertaking unauthorized employment, by an F-1 student failing to attend classes, or by commission of a crime.

For a nonimmigrant in F student or J exchange visitor status, or other nonimmigrant, unlawful presence does begin to accrue if is a determination by USCIS (during the course of adjudicating an application for an immigration benefit) or by an Immigration Judge (issuing an order of exclusion, deportation, or removal) that the nonimmigrant is no longer in status.[42]

 

Persons Unlawfully Present After Previous Immigration Violations

Persons who were unlawfully present in the United States for an aggregate period of more than one year or who have been ordered removed, and who subsequently enter or attempt to enter the United States without being lawfully admitted, are inadmissible.[43]

10. MISCELLANEOUS GROUNDS

Practicing Polygamists

Any immigrant who is coming to the United States to practice polygamy is inadmissible. This ground of exclusion does not apply to nonimmigrants.[44]

Guardian Required to Accompany Excluded Person

Where a person who has been ordered excluded is certified to be helpless from sickness or mental or physical disability or infancy, any accompanying person whose protection or guardianship is required by the excluded person is also inadmissible.[45]

International Child Abduction

Any person who detains, retains or withholds custody of a child outside the United States, after entry of an United States court order granting custody of the child to another, is inadmissible until the child is surrendered to the person granted custody by that order. However, this ground of exclusion does not apply so long as the child is located in a foreign state that is a party to the Hague Convention on the Civil Aspects of International Child Abduction.[46]

Persons Who Have Unlawfully Voted

Any person who has unlawfully voted in violation of any US Federal, State or local constitutional provision, statute, ordinance, or regulation is inadmissible. This ground of exclusion applies to voting occurring before, on or after September 30, 1996.[47]

Former Citizens who Renounced U.S. Citizenship

Any person who is a former citizen of the United States who officially renounces United States citizenship for the purpose of avoiding United States taxation is inadmissible. This ground of exclusion is applicable to individuals who renounce United States citizenship on or after September 30, 1996.[48]

11. PRIOR J-1 EXCHANGE VISITORS SUBJECT TO THE TWO-YEAR FOREIGN
RESIDENCE REQUIREMENT

No person previously admitted to the U.S. as a J-1 exchange visitor or acquiring such status after admission who became subject to the two-year foreign residence requirement may be granted H-1B temporary worker status, a K-1 fiancée visa[49], L-1 intracompany transferee status, or lawful permanent resident status until the person has either complied with the requirement or received approval of a waiver. In addition, “[a] foreign medical graduate who receives a waiver under Pub. L. 103-416 based on a request by a State Department of Public Health (or equivalent), and changes his or her nonimmigrant classification from J-1 to H-1B, may not apply for permanent residence or for any other change of nonimmigrant classification unless he or she has fulfilled the 3-year employment contract with the health care facility and in the specified HHS-designated shortage area named in the waiver application.”[50]

  1. INA § 212(a)(1)(A)(i).
  2. 9 FAM 40.11 N9.1.
  3. INA § 212(a)(1)(A)(ii).
  4. INA §212(a)(1)(A)(iii).
  5. 9 FAM 40.11 N11.2.
  6. INA §212(a)(1)(A)(iv).
  7. To be inadmissible based on an admission, a person must voluntarily admit all of the facts which constitute the crime and it must be considered a crime under the laws where it occurred.
  8. INA §212(a)(2)(A)(i)(I).
  9. 9 FAM 40.21(a) N2.2.
  10. INA § 212(a)(2)(A)(i)(II).
  11. INA § 212(a)(2)(C).
  12. INA § 212(a)(2)(B).
  13. INA § 212(a)(2)(D). Vice refers to activities such as gambling, prostitution, and narcotics, and does not encompass a loan shark. Matter of B-, 6 I. & N. Dec. 98 (BIA 1954). See also Matter of A-, 6 I. & N. Dec. 540 (BIA 1955).
  14. INA § 212(a)(3)(A).
  15. 9 FAM § 40.31 n.5.3(b).
  16. 8 C.F.R. § 264.1(f)(8)(ii)
  17. INA § 212(a)(3)(B)(i).
  18. INA § 212(a)(3)(C).
  19. INA § 212(a)(3)(E).
  20. INA § 212(a)(4).
  21. INA § 212(a)(4).
  22. INA § 212(a)(5)(A).
  23. See 9 FAM § 40.52.
  24. See ECFMG, Certification and Application Information Booklet 31 (1995).
  25. See INA § 101(a)(27)(H).
  26.  INA § 212(a)(6)(A)(i).
  27. INA § 212(a)(6)(B).
  28. INA § 212(a)(6)(C)(i).
  29. INA § 212(a)(6)(C)(ii).
  30. INA § 212(a)(6)(E).
  31. INA § 212(a)(6)(F)(i).
  32. INA § 214(l). Similarly, a person who initially enters to attend private school and then transfers to a public school (subject to the exception previously described) is deemed to have violated F-1 status.
  33. INA § 212(a)(6)(G).
  34. INA § 212(a)(6)(B), (a)(7)(A).
  35. INA § 212(a)(7)(B)(i).
  36. INA § 212(d)(4).
  37. INA § 212(a)(8)(B).
  38. See INA §235(b)(1).
  39. INA § 212(a)(9)(A).
  40. INA § 212(a)(9)(B)(i)(I).
  41. INA § 212(a)(9)(B)(i)(II).
  42. Memo, Pearson, Exec. Assoc. Comm. Field Operations (HQADN 70/21.1.24-P, AD 00-07) (Mar. 3, 2000) at ¶2B, at AILA InfoNet Doc. No. 00030774.
  43. INA § 212(a)(9)(C).
  44. INA § 212(a)(10)(A).
  45. INA § 212(a)(10)(B).  
  46. INA §212(a)(10)(C).
  47. INA § 212(a)(10)(D).
  48. INA § 212(a)(10)(E).
  49. 9 FAM 41.81 N8.
  50. 8 C.F.R. § 212.7(c)(9)(iii); see 8 C.F.R. § 245.1(c)(2).

5 Replies to “Grounds of Inadmissibility under U.S. Immigration Law”

  1. Hi sir,

    I came to America as a tourist, was out of status for 1 year, then got a 2-year conditional green card through marriage to a U.S. citizen. Now, I want to go to my home country for 2 weeks, but I’ll go without my husband. Will it be a problem that my husband cannot come with me? What questions might the officer ask at the airport when I return?

    1. Lina,

      A few preliminary impressions: First, your 1 year out of status before becoming a conditional resident should no longer be a problem since you were subsequently granted conditional resident (CR) status. (Of course, the general rule applies that your status can be rescinded if it was granted based on your misrepresentation of the facts.) Second, make sure you plan to reënter before your CR status expires. Third, a CR can travel without her husband–that in itself presents no risk, but again your CR status was based on evidence that you and your husband have a bona fide relationship, not one entered into solely for immigration purposes, and your status can be rescinded if the grant was due to a misrepresentation as to the validity of the marriage. Read the attached ground of inadmissibility. If any pose a potential problem, consult with an immigration lawyer. If not the only questions you may be asked upon return to the U.S are, “How long were you abroad?”, “What were you doing there?”, and “Welcome home.”

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