Ineligibilities and waivers in US immigration – Part III

By Michael Phulwani
This is the third part of a series of articles on grounds for inadmissibility under the Immigration & Nationality Act and the waivers available to overcome these grounds. In the last two articles, we discussed four grounds of inadmissibility. In this article, we will discuss some other grounds of inadmissibility.

5. Public charge
A person, who, in the opinion of the consular officer or USCIS, is likely to become a public charge is inadmissible. This means that aliens immigrating under family-based petitions must have a valid affidavit of support (Form I-864), which meets the current poverty guidelines as published by the Department of State to meet the public charge requirements.

6. Labor certification requirements & licensure requirements
Failure to meet labor certification requirements — A person coming to the US to work must have a labor certification, unless they are able to qualify for one of the other employment-based immigration categories, which do not require labor certification.

Exception: There are special rules for teachers, aliens skilled in the arts and sciences and professional athletes. Also there are cases when a labor certification is not required. Professions, which fall into this category, are nurses and physical therapists, where the Attorney General has determined that there are not sufficient nurses, who are able, willing, qualified currently in the United States.

Failure to meet licensure requirements for medical doctors — Persons coming to the US to work as physicians to engage in medical education or training must pass Part I & II of the National Board of Medical Examiners Examina-tion, or its equivalent.

Failure to meet certification requirements for healthcare workers — Other healthcare workers must present certifications from designated entities.

7. Documentary

An applicant upon arrival at the Port of Entry into the US, does not possess a valid immigrant or nonimmigrant visa, he/she is inadmissible. In-stances, which fall under this category are:
l Immigrant without proper visa or travel documents upon arrival at POE
l Improperly issued immigrant visa discovered upon arrival at POE.
l Nonimmigrant not in po-ssession of passport valid for at least six months from the date the initial admission expires.
l Nonimmigrant not in  po-ssession of a valid nonimmigrant or border crossing card visa upon arrival at POE.
Waiver: In the case of immigrant visa applicants, the Attorney General has discretion to admit an alien with an improperly issued immigrant visa if the alien did not know and could not have reasonably ascertained beforehand that he/she is inadmissible.

In the case of nonimmigrant visa applicants, the Attorney General can jointly waive the non-immigrant visa requirement in certain cases at the port of entry for an unforeseen emergency.

8. Ineligible for citizenship
A person permanently barred from obtaining US citizenship is inadmissible. This category of people primarily includes people, who got out of military service based on their allegiance and people, who left the US to avoid the draft.

9. Applicants previously removed or

unlawfully present

Aliens, who have been deported, are inadmissible. After a first deportation, the person is inadmissible for five years, and after subsequent deportations, the period of inadmissibility is 20 years. A person deported because of an aggravated felony is permanently inadmissible.

People, who have been unlawfully present in the US for more than 180 days but less than a year, are inadmissible for three years. Unlawful presence of more than a year leads to inadmissibility for 10 years.

Exception: Minors, bona fide asylum applicants, family unity beneficiaries and battered spouses and children.

Waivers: Waiver of the 3- and 10- year bars is available in the case of an immigrant, who is the spouse, son or daughter of a US citizen or LPR, if the alien can establish that the refusal of admission would result in extreme hardship to the qualifying relative. There is no waiver for parents of US citizens, so hardship to a US citizen child is not a basis for waiver.
To be concluded

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