A consul or migration officer can not disapprove of visa applications out of hand. There has to be, in fact, a basis for inadmissibility before a visa application is refused or denied.
How an applicant is deemed eligible for a visa
At the time of the interview, a visa applicant must qualify for the specific visa for which he is applying. And to determine if an applicant is eligible for a visa, a consular officer at a U.S. embassy or consulate will interview applicants for most types of visa categories.
For immigration applications, the interviewing consul meets the applicant for the first time only during the interview. While he interviews the applicant, he will also rely on documents and information from the file forwarded by the National Visa Center. The complete file includes petition documents that a petitioner submitted to the US Citizenship and Immigration Services. A consul will decide if an immigrant visa applicant is admissible only after reviewing the documents and interview answers
U.S. Immigration Agencies
The various agencies handling your immigration-related applications may decide you are not eligible for a visa any time you ask for permission to enter or stay in the United States. These agencies include the U.S. State Department and the Department of Homeland Security. The two departments and the subagencies that are involved in immigration and visa applications are
- Department of Homeland Security.
- U.S. Citizenship and Immigration Services or USCIS.
- Customs and Border Protection or CBP.
- Immigration and Customs Enforcement or ICE.
- Department of State.
- National Visa Center or NVC.
- Consular posts.
These agencies can use your inadmissibility to block you any time you try to enter the U.S., whether by crossing the border, applying for a visa, adjusting, or changing status while you are living in the U.S.
Learn about the various immigrant visa categories.
Inadmissibility Factors
The law and inadmissibility.
U.S. consuls rely on the Foreign Affairs Manual, directives, memorandum, and established procedures during the interview. Hence, consular posts implement strict protocols for visa applications.
A consul decides on an application after reviewing the documents submitted by an applicant and his interview answers. A consul will have the visa issued or not by considering the U.S. laws and regulations in place on the date of the interview.
Checking if you are admissible.
U.S. law sets many standards for which a consul may disapprove of a visa application. Migration Officers at a consular post, known as consuls, check that applicants to the U.S. are eligible for the visa for which they are applying.
Checking that applicants meet requirements doesn’t only happen at a consular post, though. The applications of people already in the U.S. applying to change or adjust their status are checked, too. In this respect, U.S. immigration law treats applicants living in the U.S. the same as those applying from outside its borders.
Even lawful permanent residents, or LPRs, are subject to review when they enter the U.S. from traveling abroad. If you spent 180 continuous days or more living outside the U.S., you may not be admitted into the U.S. by the officials of the Customs and Border Patrol, or CBP.
As an LPR living in the U.S., you may still be subject to removal, though. Conviction of certain crimes could lead to being deported. Another reason for the removal of an LPR is getting public assistance upon receiving your “green card.”
Overcoming a Finding of Inadmissibility
The basis for inadmissibility of an application is in the Immigration and Nationality Act (INA) and other immigration laws. Some ineligibilities can be overcome, either by you, the visa applicant, or the U.S. petitioner, in certain immigrant visa cases.
Basis for Inadmissibility
In most cases that a consul disapproves a visa application, he will notify the applicant of the pertinent section of the Immigration and Nationality Act, or INA, that is the basis of inadmissibility.
| Reason for Inadmissibility | Pertinent law |
|---|---|
| Non-completion of the visa application and/or incomplete supporting documentation | INA § 221(g) |
| For non-immigrant visa applicants, except for fiancee visa applicants, if an applicant has not overcome the presumption of being an intending immigrant | INA § 214(b) |
| Conviction of a crime involving moral turpitude | INA § 212(a)(2)(A)(i)(I) |
| Convicted of a drug violation | INA § 212(a)(2)(A)(i)(II) |
| Has two or more criminal convictions for which the total sentence of confinement was 5 years or more | INA § 212(a)(2)(B) |
| Did not demonstrate proof of adequate financial support in the United States; therefore, denied under public charge | INA § 212(a)(4) |
| Misrepresented a material fact or committed fraud to attempt to receive a visa | INA § 212(a)(6)(C)(i) |
| Previously remained longer than authorized in the United States | INA § 212(a)(9)(B)(i) |
| Health-Related Grounds of Inadmissibility | INA § 212(a)(1) |
Some of the reasons listed can bar you temporarily from entering the US. For example, if the basis of inadmissibility is an illness (such as tuberculosis), the DHS may find you admissible once you are cured.
Things are different if the reason for your ineligibility is permanent. Every time you apply for a visa, a consular officer will deem you ineligible for a visa under the same section of the law. This is where filing a waiver of that ineligibility comes in.
Reach out to us for a migration briefing to check if you qualify for a waiver.
Waivers
Even if one factor of inadmissibility can be applied to your visa application, you might not be barred permanently from entering the U.S.
As a last resort, you may still be able to apply for a waiver. A waiver is like asking the U.S. government to overlook or pardon an immigration violation and to admit you despite your inadmissibility.
Not everyone can apply for a waiver of inadmissibility, though. There are criteria where one must be assessed to determine if a when determining whether a non-immigrant waiver will be granted. If you decide to write one on your own, you may make a mistake. And, waivers are not always available, especially for non-immigrant visas. The same goes for immigration waivers. Each ground for inadmissibility may have different criteria that an applicant has to fulfill. Since immigration waivers are permanent, these are also more difficult to get approved.
Reapplying for a visa after visa application refusal.
There are temporary and permanent or final refusals. Most visa applicants may reapply, especially those applying for tourist visas. Of course, they have to pay another nonimmigrant visa fee.
A 221(g) refusal is temporary. You must comply with the instructions in the 221(g) letter, though. An applicant found ineligible for a visa under section 214(b) of the INA may apply again. He must present evidence of significant changes in circumstances since his last application. INA section 214(b) refers to the presumption of a consul that an applicant intends to remain in the U.S.
Applying for a waiver
Filing a waiver is basically asking forgiveness for one or two violations of visa laws or immigration regulations. You may find the basis for filing a waiver in the Immigration and Nationality Act (INA). Hence, some visa applicants, whose applications were denied by a consul, may apply for a waiver of the ineligibility.
Waivers are discretionary. This means that there are no guarantees that DHS will approve an applicant’s request for a waiver. If the DHS approves the waiver, the applicant may renew or resume his visa application. If no other basis to refuse a visa application exists, then a consular officer may issue a visa.
In most cases, a consul will notify the applicant of the pertinent section of the INA that is the basis for inadmissibility.
If an applicant is eligible to file a waiver request, he must submit it to the Department of Homeland Security (DHS). It is the DHS adjudicates all waivers of ineligibility, not the consul who refused the visa application.
Learn how to petition a family member to live in the US
Inquiries on behalf of an applicant.
The records of the Department of State visa case records are confidential under INA section 222(f). So, information can only be provided to visa applicants.
However, there are some exceptions. The subagencies of the DOS may share some information with U.S. sponsors, attorneys representing visa applicants, members of Congress, or other persons. The latter, known as Third Party individuals in good standing with the U.S. Embassy, or the NVC, may act on behalf of and with the permission of applicants. A visa applicant may appoint Third-Party individuals as Designated Agents if his petition is at the NVC stage.