Grounds of Inadmissibility
By: Gary Chodorow
Revised: June 1, 2007

To be issued a visa and admitted to the U.S. at a port of entry, a foreign national must be "admissible." In other words, a person who falls within the "grounds of inadmissibility" set forth in U.S. law may not enter the country. Note that certain important exceptions to the grounds of inadmissibility and opportunities to apply for waivers of the grounds do exist. Our firm's clients should contact us as early as possible with any concerns about admissibility so that we can analyze these issues.

The grounds of inadmissibility can be divided into the following categories:
 

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

Communicable Diseases

Persons having communicable diseases of significance to the public health (including without limitation HIV, infectious syphilis, gonorrhea, leprosy and infectious tuberculosis) are excludable. INA § 212(a)(1)(A)(i).

Proof of Vaccination (This Ground Applies Only to Applicants for Permanent Resident Status)

Persons who seek admission with an immigrant visa or who seek to adjust to lawful permanent resident status are excludable 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. INA § 212(a)(1)(A)(ii).

Physical or Mental Disorders

Persons are excludable if they have been determined in accordance with the regulations of the Secretary of Health and Human Services in consultation with the Attorney General:

• to have 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; or

• to have had a physical or mental disorder and a history or behavior associated with the disorder that may pose or has posed a threat to the property, safety or welfare of the person or others and which behavior is likely to recur or lead to other harmful behavior.

Drug Abusers and Drug Addicts

A person who is determined in accordance with the regulations of the Secretary of Health and Human Services to be a drug abuser or drug addict is excludable. Drug abuse is defined as the non-medical use of a substance listed in §202 of the Controlled Substances Act even if the use has not resulted in physical or psychological dependence. (This may even include the one-time use of marijuana or cocaine). INA §212(a)(1)(A)(iv).

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 crime involving moral turpitude, other than purely political offenses are excludable under INA §212(a)(2)(A)(i)(I). To be excludable 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. 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.

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

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 substance (as defined in section 102 of the Controlled Substances Act). An attempt or conspiracy to commit such a crime is included in this ground of exclusion. INA §212(a)(2)(A)(i)(II).

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 excludable if the aggregate sentence of confinement actually imposed is five years or more. INA ?12(a)(2)(B),

Controlled Substance Traffickers

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 excludable. INA §212(a)(2)(C).

Prostitution and Commercialized Vice

A person is excludable 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 United States to engage in any other unlawful commercialized vice, whether or not related to prostitution. INA ?12(a)(2)(D).
   

Persons involved in serious criminal activity who have asserted immunity will be excludable if:

• they have at any time committed a serious offense in the United States;

• immunity from criminal jurisdiction has been exercised with respect to that offense;

• they have departed from the U.S. due to the offense and the exercise of immunity; and

• they have not submitted fully to the jurisdiction of the court of the U.S. that has jurisdiction with respect to that offense. INA ?12(a)(2)(E).
   

In General

A person is excludable if a consular officer or the Attorney General knows or has reasonable grounds to believe the person seeks to enter the United States to engage solely, principally or incidentally in the following:

• any activity: (I) to violate any law of the United States relating to espionage or sabotage, or (II) to violate or evade any law prohibiting the export from the United States of goods, technology or sensitive information;

• any other unlawful activity; or
• any activity the purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence or other unlawful means. INA ?12(a)(3)(A).

Terrorist Activity

A person is excludable who:

• has engaged in; or

• who a consular officer or the Attorney General 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.

Foreign Policy

A person will be excludable if the Secretary of State believes, based on reasonable grounds, that his or her entry or proposed activity in the United States would have potentially serious adverse foreign policy consequences for the U.S. INA ?12(a)(3)(C).

Membership in the Communist Party or a Totalitarian Party

Applicants for permanent resident status (not applicants for nonimmigrant visas) 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 an alien whose membership or affiliation with a party controlling a totalitarian dictatorship.

Relief is available for aliens whose association with a proscribed organization is or was non-meaningful

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

The Department of Homeland Security (DHS) may waive ineligibility for immigrant visa applicants who have the requisite family relationship with a U.S. citizen or permanent resident alien for humanitarian purposes.

Participants in Nazi Persecutions or Genocide

A person is excludable if he or she:

• between March 23, 1993 and May 8, 1945 ordered and incited, assisted or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion under the direction of or in association with the Nazi government of Germany, a government in an area occupied by the Nazi government, any government established with the assistance of or cooperation of the German Nazi government, or any government which was an ally of Nazi Germany; or

• has engaged in conduct that constitutes genocide for the purposes of the International Convention on the Prevention and Punishment of Genocide. INA ?12(a)(3)(E).
  

A person who, in the opinion of a consular at the time of the application for a visa, or the Attorney General at the time of the application for admission or adjustment of status, is likely to become a public charge at any time is excludable. The government looks at the totality of circumstances in making its determination, including the person's age, capacity to earn a living, health, family circumstances, employment history and whether or not the person has ever received public assistance. INA ?12(a)(4).

Affidavit of Support (This Ground Applies only to Certain Applicants for Permanent Resident Status)

Virtually all persons immigrating through one of the family-based categories 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. INA ?12(a)(4).

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 United States, and able to support both the sponsor’s and the immigrant’s families 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(s) 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.
 

Labor Certification (This Ground Only Applies to Persons Seeking Permanent Residence)

A person seeking entry for the purpose of seeking skilled or unskilled labor is excludable in the absence of an approved labor certification. This ground of exclusion applies to the second and third employment-based preference categories. INA ?12(a)(5)(A).

Unqualified Physicians

Graduates of foreign medical schools who are coming to the United States principally to perform services as members of the medical profession are not admissible to the United States as permanent residents unless they have been issued a certificate from the Educational Commission for Foreign Medical Graduates ("ECFMG"), which is evidence of 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). See 9 Foreign Affairs Manual notes to 22 CFR §40.52.

• 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. See ECFMG, Certification and Application Information Booklet 31 (1995).

• The examination requirements do not apply to a person who has graduated from a medical school in the United States 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.

• This ground of inadmissibility applies only to persons immigrating in the employment-based, second-preference (professionals holding advanced degrees) and third-preference (professionals holding bachelor degrees) categories. Therefore, this ground of inadmissibility does not apply to other immigrants, such as: foreign physicians immigrating under the family-based preference categories; the spouse or child of the principal beneficiary of an employment-based immigrant petition; or persons immigrating in the employment-based, first-preference category (persons of extraordinary ability, outstanding professors and researchers, multinational executives and managers).

• The ground of inadmissibility is inapplicable to a graduate of a medical school who was fully and permanently licensed to practice medicine in a US state on January 9, 1978 and was practicing medicine on that date. However, such persons must still establish proficiency in written and oral English. See INA §101(a)(27)(H).

• 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.
   

A person who seeks to enter the United States as a health-care worker, other than a physician, is excludable unless the person presents a certificate from the Commission on Graduates of Foreign Nursing Schools ("CGFNS"), or certificate from an equivalent independent credentialing organization approved by the Attorney General in consultation with the Secretary of Health and Human Services verifying that:

• the person's education, training, license and experience ?(I) meet all applicable statutory and regulatory requirements for entry into the United States under the classification specified in the application; (II) are comparable with that required for an American health care worker of the same type; and (III) are authentic and in the case of a license, unencumbered;

• the person has the level of competence in oral and written English considered by the Secretary of Health and Human Services, in conjunction with the Secretary of Education, to be appropriate for health care work of the kind in which the person will be engaged; and

• if a majority of States licensing the profession in which the person intends to work recognizes a test predicting the success on the profession's licensing or certifying examination, the person has passed such a test or examination. INA 212(a)(5)(C).

The determination of standardized tests required and of the minimum scores are within the sole discretion of the Secretary of Health and Human Services and are not subject to further administrative or judicial review.

The term "health care worker" includes a nurse, physical therapist, occupational therapist, speech-language pathologist, medical technologist and technician, physician assistant and other occupations.

ILLEGAL ENTRANTS AND IMMIGRATION LAW VIOLATORS

Persons Present Without Admission or Parole

A person present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible. INA §212(a)(6)(A)(i).

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 the person's in admissibility or deportability and who seeks admission to the United States within 5 years of such person's subsequent departure or removal is inadmissible. INA ?12(a)(6)(B).

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 into the United States or other benefit provided under the Immigration and Nationality Act is excludable. The determination of materiality is a fact which would make a person excludable or shut off a line of inquiry which may have resulted in exclusion. INA §212(a)(6)(C)(i).

Any person who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under the INA or any other Federal or State law is excludable. INA §212(a)(6)(C)(ii).

Stowaways

A person who is a stowaway is excludable. INA §212(a)(6)(D).

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 excludable. INA §212(a)(6)(E).

Document Fraud

Persons who are subject to a final order for violation of section 274C (which relates to document fraud) are excludable. INA §212(a)(6)(F)(i).

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. 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. INA ?14(l).

A person who obtains F-1 status and who violates the above law is excludable until the person has been outside the United States for a continuous period of 5 years after the date of the violation. INA §212(a)(6)(G).
 

Documentary Requirements for Persons Seeking Permanent Residence

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

• they are 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 INS regulations, or

• their visa has been issued without compliance with the provisions of the Immigration and Nationality Act. INA ?12(a)(6)(B), ?12(a)(7)(A).
   

Any nonimmigrant who is excludable if they:

• are 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

• are not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission. INA §212(a)(7)(B)(i).

A general waiver of the visa requirement is authorized for Canadian citizens and landed immigrants of Canada having British commonwealth citizenship except in the case of K-1 and E-1/E-2 nonimmigrant visas. INA ?12(d)(4).

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 excludable. INA ?12(a)(8)(B).
 

Certain Persons Previously Removed

A person who has been ordered removed under the INA §235(b)(1) [summary removal upon inspection of applicants for admission] or at the end of removal proceedings under the new INA §240 initiated upon the person's arrival in the United States [an exclusion proceeding] and who again seeks admission within 5 years of the date of such 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. INA ?12(a)(9)(A).

Further, any other person who has been ordered removed under INA §240 or any other provision of law [a deporatation proceeding] or departed from the United States while an order of removal was outstanding and who seeks admission within 10 years of the date of such person's departure or removal (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 excludable for a period of three years. INA §212(a)(9)(B)(i)(I).

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. Unlawful presence does not begin to run from the date of a status violation (including unauthorized employment).

Any person who has been unlawfully present in the United States for 1 year or more is excludable for 10 years. INA §212(a)(9)(B)(i)(II).

An applicant whose adjustment of status was pending would not be considered unlawfully present. Unlawful presence with respect to a nonimmigrant includes only periods of stay in the United States beyond the date noted on Form I-94, Arrival/Departure Record. F students and J exchange visitors are admitted for "duration of status," not until a specific date so generally cannot be "unlawfully present." However, in the case of either a person admitted until a specific date or in the case of an F student or J exchange visitor, unlawful presence does: (1) when an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or (2) when the Service makes such a determination during the course of adjudicating a benefit application. In cases where the immigration judge finds there was a status violation, unlawful presence begins to accrue as of the date of the order of the immigration judge, whether or not the decision is appealed. (If the judge grants voluntary departure, however, the voluntary departure period is not considered unlawful presence).

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 excludable. INA §212(a)(9)(C).
 

Practicing Polygamists

Any immigrant who is coming to the United States to practice polygamy is excludable. This ground of exclusion does not apply to nonimmigrants. INA ?12(a)(10)(A).

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 excludable. INA ?12(a)(10)(B).  

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 excludable 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. INA ?12(a)(10)(C).

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 excludable. This ground of exclusion applies to voting occurring before, on or after September 30, 1996. INA ?12(a)(10)(D).

Former Citizens who Renounced Citizenship to Avoid United States Taxation

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 excludable. This ground of exclusion is applicable to individuals who renounce United States citizenship on or after September 30, 1996. INA ?12(a)(10)(E).

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

No person previously admitted to the US 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, 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." 8 CFR §212.7(c)(9)(iii); see 8 CFR §245.1(c)(2).