What are the criminal grounds for inadmissibility?

There are six basic criminal grounds for inadmissibility:

• Crimes involving moral turpitude
• Violations of controlled substance laws
• Conviction of more than one offense
• Drug trafficking
• Prostitution and commercialized vice, and
  Commission of a serious crime in the US for which the immigrant asserted immunity from prosecution.

For crimes involving ‘moral turpitude’ there is no statutory definition, but typically involve elements of fraud, larceny, or attempt to harm persons or things. These crimes can be classified into three general categories:

• Crimes committed against property (for example, arson, blackmail, burglary, larceny, robbery, fraud, false pretences, theft, receiving stolen property);
• Crimes committed against governmental authority (for example, bribery, tax evasion, perjury, fraud against government functions); and
• Crimes committed against persons, family relationships, and sexual morality (for example, serious assaults, gross indecency, lewdness, kidnapping, contributing to the delinquency of a minor, murder, voluntary manslaughter, rape).

Who is eligible to apply for a criminal waiver?

Except for individuals with inadmissibility findings related to security and other narrow areas, most other individuals barred from the United States can usually apply for a nonimmigrant waiver of inadmissibility at a US Embassy.

However, not all visa categories can apply for all the inadmissibility categories, so it will be important to take advice on your specific circumstances.

What is the waiver application process?

To apply for a criminal waiver of inadmissibility, you must present a thoroughly prepared waiver application together with your nonimmigrant visa application and visa application fee. If the embassy officer determines, after careful questioning, that you should be granted a waiver, the officer makes a recommendation to the Customs and Border Protection Admissibility Review Office (ARO) in the United States. This agency will make a final determination.

What is the inadmissibility waiver form?

Form I-601 is used to apply for a waiver of inadmissibility if you are seeking permission to enter the US or are seeking to adjust your status (such as applying for a Green Card).

Form I-601A is for individuals who are in the US without lawful status who have immediate relatives who are US citizens or Green Card holders. The waiver application has the specific purpose of waiving the time you are banned from re-entering the US as a result of your unlawful status and presence in the country.

What are the waiver application criteria?

The following factors are considered in granting a nonimmigrant waiver:

• Risk of harm to society if the applicant is admitted.
• The seriousness of the applicant’s prior immigration law, or criminal law, violations, if any.
• The nature of the applicant’s reasons for wishing to enter the United States.
• It is important to note that even if a waiver is recommended and a visa is ultimately granted, some travellers still face intense scrutiny and at times harsh treatment by Customs and Border Protection when entering the United States.

This type of behaviour cannot be predicted and is entirely discretionary. If unnecessary delays when entering the United States continue to occur even after a visa has been approved by the State Department then you will want to consider whether to file a complaint through the DHS Traveller Redress Inquiry Program (TRIP).

Supporting your declaration for admissibility

Factors to consider when building your waiver application include evidence of good moral character, such as community involvement and standing, and positive reasons and consquences as to why a waiver should be granted. If the waiver relies on a qualifying relative, you may be able to show that refusing admission would result in extreme hardship for your relative, which could cover medical, financial, emotional or parental issues.

What has to be disclosed in the application?

The applicant is obligated to provide full disclosure to the authorities of any factors which may render them inadmissible, such as criminal convictions and immigration violations. You may also be required to provide further information or documents relating to the inadmissibility grounds. Failure to disclose or misrepresenting information in itself can provide grounds for inadmissibility.

How to file a complaint to the DHS Traveller Redress Inquiry Program (TRIP)

A DHS TRIP submission can be made if you are facing the following issues:

• You are always subjected to additional screening when going through an airport security checkpoint.
• You were denied boarding.
• You are directed to a ticket counter every time you fly.
• The airline ticket agent stated that you are on a Federal Government Watch List.
• You are detained during your travel experience.
• A ticket agent took your identification and called someone before handing you a boarding pass.
• You missed your flight while attempting to obtain a boarding pass.
• You are repeatedly referred for secondary screening when clearing U.S. Customs and Border Protection.
• You were denied entry into the United States.

If you have questions regarding the need for a waiver of inadmissibility or a DHS TRIP submission please contact us for a comprehensive review of your circumstances and a detailed discussion about strategy, procedures, timing and costs.