Ineligibilities and waivers in US immigration – Part IV

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By Michael Phulwani

This is the concluding part of a series of articles on grounds for inadmissibility under the Immigration & Nationality Act and the waivers available to overcome these grounds. Until now, we have covered nine (9) grounds of inadmissibility and the waivers available for the same. In this article, we will discuss the remaining grounds of inadmissibility and the waivers.

Aliens present without admission or parole after previous immigration violation.

Aliens, who have been unlawfully present for an aggregate period of one year, or who have been ordered removed under the Immigration & Nationality Act, and who subsequently enter or attempt to enter the United States unlawfully, are permanently inadmissible. The only exception to this bar is for a person seeking admission more than 10 years after the last departure from the United States, who has been granted consent to reapply by the Attorney General.

Miscellaneous grounds

Practicing polygamists — Persons coming to the US to engage in polygamy are inadmissible.

Guardian required to accompany helpless applicant — A person, who is accompanying another inadmissible alien, who is  certified to be helpless from sickness, mental or physical disability, is also inadmissible.

International child abduction —  Persons, who have detained a US citizen child outside the US, are inadmissible until they comply with any court order regarding the child’s custody.

Unlawful voters — Any alien, who has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation is inadmissible.

Former citizens, who renounced citizenship to avoid paying US taxes —Former US citizens, who renounced their citizenship for tax purposes are inadmissible.

Aliens subject to the two-year foreign residence & physical presence requirement.

J-1 exchange visitors (J-2 dependent spouse & children) (a) whose program was funded by the US or home country government (b) whose skills are required in their home country as designated in the exchange visitor skills list (c) who are foreign medical graduates who participated in the program to receive graduate medical education or training are not eligible to apply for H or L nonimmigrant visa or for an immigrant visa unless he/she has satisfied the two- year foreign residence requirement.

Waiver of the two-year foreign residence requirement may be authorized only under the following circumstances:

l The alien has a US citizen or permanent resident spouse or unmarried minor child and establishes in an application to the US citizenship & Immigration Services (USCIS) that compliance with the two-year foreign residence re-quirement would impose exceptional hardship on such spouse or child.

l The alien established in an application to the USCIS that returning to his or her country of nationality or last foreign residence would subject him or her to persecution on account of race, religion or political opinion.

l A US government agency requests the US Secretary of State to recommend a waiver in the alien’s behalf for the reason that compliance with the two-year foreign residence requirement would be detrimental to a program or activity of official interest to the agency. Waiver under this category is not available to J-1 physicians, who come to the US for medical education or training (residency or internship).

l The country of the alien’s nationality or last foreign residence furnishes to the US Secretary of State a written statement that it has no objection to the waiver.

l Conrad State 30 Program — Under the Conrad State 30 program, each state is permitted to sponsor up to 30 doctors a year for J-1 home residency waivers. While there are some common requirements for each program — physicians must work three years full time in health professional shortage areas — there are a number of important variations between the different states. A foreign medical graduate (FMG) is eligible for a J-1 Conrad waiver if the FMG acquired J-1 status by or before May 31, 2004.

Nonimmigrant waivers

Except for security related grounds, most of the above mentioned grounds of inadmissibility may be waived in the case of nonimmigrant visa applicants. This waiver is most commonly applied to allow business visitors, E, H and L admissions. However, it is not limited to such cases.

The application procedures and where the application is filed vary depending on whether the alien requires a visa or is visa exempt.

Applicant – visa exempt: If a visa is not needed, the alien should apply for the waiver to the port director in charge of the intended port of entry. 
Visa required: If a visa is needed for entry to the United States, the waiver application is submitted to  the consular officer in conjunction with the application for a visa. No formal application or fee is required, but the submission to the consul may be a letter stating the case, with a list of  attachments (including documents enumerated above except Form I-192 and the filing fees).

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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