Grounds for Inadmissibility

Practically from the country’s inception, there have been grounds for excluding foreign nationals. Generally, the grounds of inadmissibility apply equally to immigrants and nonimmigrants. The grounds of inadmissibility listed in the INA are exclusive or limited. The categories cannot be enlarged capriciously or disregarded by executive officers or the courts. In other words, a foreign national may not be held inadmissible on a ground other than those given in INA § 212, 8 U.S.C. § 1182.

The several grounds of inadmissibility are set forth in nine broad categories. The enumerated grounds of inadmissibility are:

• health-related;
• criminal and related;
• national security;
• the likelihood of becoming a public charge (i.e., relying on public benefits);
• lack of labor certification (or for foreign doctors, lack of certain medical qualifications);
• having undergone removal in the past five years;
• failure to possess certain required documents;
• permanent ineligibility for citizenship and draft evasion; and
• a miscellaneous category that includes polygamists, international child abductors, and guardians of certain helpless foreign nationals.

The grounds of inadmissibility are wholly distinct from the numerical requirements. Waivers of some of the grounds of inadmissibility are possible, but can be difficult to obtain.

Example: Paula is 27 years old and her mother is a U.S. citizen. She would like to come to the U.S. to live and work permanently. As an unmarried daughter of a U.S. citizen, she would qualify for an immigrant visa classification under the family-sponsored first preference. Nevertheless, her medical exam indicated that she is HIV positive. As such, she is inadmissible, despite the family-sponsored preference.

As previously mentioned, entry into the U.S. first requires an appropriate visa, which is obtained at the U.S. consular post, overseas. The visa application process differs for nonimmigrants and immigrants. Nonimmigrants must prove that they are qualified for the visa category they are seeking. Upon arrival at the port of entry, the nonimmigrant applicant must present a passport and visa, if required, and may be asked questions bearing on eligibility for admission. If admitted, the nonimmigrant normally will be given an arrival-departure record (Form I-94), endorsed to show the visa status and period of admission. Form I-94, usually stapled to a passport page, is to be turned in when leaving the United States. CBP keeps a counterpart as a control.

A nonimmigrant may apply to USCIS to extend his or her stay in the United States or change to another nonimmigrant status. A change of status does not require a new visa if the foreign national will not be leaving the U.S. But neither does it eliminate the need for a visa; if the foreign national goes abroad and wishes readmission in the new status, a visa in the new classification is required.

Although required, a visa is not a guarantee of entry to the U.S. under the “double-check” system. When a foreign national arrives at a port of entry, whether at an airport, seaport, or land border, an immigration inspector makes an independent determination whether the foreign national should be admitted to the U.S. This process is known as "inspection" . A person is not lawfully admitted to the U.S. until after an inspection.

Example: Oscar is a citizen of Chile. He recently received an H-1B visa in preparation for starting a new job in Florida at a U.S. multinational corporation. When he arrived at Miami Airport, he had to undergo an inspection before being admitted. The immigration officer reviewed his passport and visa and found them both to be in order. As such, the officer inserted an I-94 card into his passport, which indicated how long he could remain in the U.S. After his inspection, Oscar is considered admitted into the U.S.

U.S.-Visit Program

At this time, U.S.-VISIT requires that most foreign visitors traveling to the U.S. on a visa have their two index fingers scanned and a digital photograph taken to verify their identity at the port of entry. As previously mentioned, visas are required for most students, business travelers (depending on their length of stay) and millions of other visitors, regardless of where they live. Currently, U.S.-VISIT does not apply to visitors seeking admission under the Visa Waiver Program (“VWP”). However, by September 30, 2004, U.S.-VISIT procedures will be expanded to include visitors traveling under the VWP arriving at air and sea ports of entry. It does not apply to U.S. citizens.

There are exceptions to U.S.-Visit:

• Visitors admitted on an A-1, A-2, C-3, G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, or NATO-6 visa ;
• Children under the age of 14;
• Persons over the age of 79;
• Classes of visitors the Secretary of State and the Secretary of Homeland Security jointly determine shall be exempt; and
• An individual visitor the Secretary of State and the Secretary of Homeland Security or the Director of Central Intelligence jointly determine shall be exempt.

Re-entry after Traveling Abroad

Despite a desire to live in the U.S. permanently, on occasion, foreign nationals may have a need to travel to another country for a short visit or an extended stay. For persons who are U.S. citizens, they may need permission to return to the U.S. after traveling abroad. This permission is granted through a travel document. Travel documents are also given to people who want to travel, but cannot get a passport from their country of nationality.

Lawful Permanent Residents (LPRs or green card holders) use re-entry permits to re-enter the U.S. after travel of one year or more. For LPR’s returning to the U.S., re-entry permits are generally valid for two years from the date of issuance of the re-entry permit. The LPR should apply for this benefit before leaving the U.S.

Conditional residents also use re-entry permits to re-enter the U.S. after travel of one year or more. For conditional residents returning to the U.S., re-entry permits are generally valid for two years from the date of issuance of the re-entry permit or until the date the conditional resident must apply for the removal of conditions, whichever comes first. The conditional resident should apply for this benefit before leaving the U.S. USCIS does not extend re-entry permits. See INA § 223.

Re-entry permits do not automatically guarantee admission into the U.S. These aliens are still subject to the inspection process at the port of entry. Generally, travel outside of the U.S. for more than one year will, under most circumstances, break the continuous residence requirement for later naturalization purposes (discussed in the next chapter). In addition, travel for over six months may break the continuous residence requirement. See INA § 316(b).

Most aliens who have pending applications for immigration benefits or for changes in nonimmigrant status need Advance Parole to re-enter the U.S. after traveling abroad. Aliens applying for advance parole on the basis of a pending application for adjustment of status must be approved prior to leaving the U.S. in order to avoid the termination of their pending application for adjustment.

This procedure does not apply to all aliens who have applied to adjust to permanent resident status. Rather, aliens who maintain the following statuses and nonimmigrant visa types are exempt from this requirement:

1. H-1B (Specialty Worker) status, or their dependents;
2. L-1 (Intracompany Transferee) status, or their dependents;
3. V nonimmigrants (also have the option of obtaining a valid V visa before applying for readmission to the U.S.); and
4. K-3 or K-4 nonimmigrants (also have the option of obtaining a valid K-3 or K-4 visa before applying for readmission to the U.S.).

Example: Justine is a citizen of Belgium. She has been in the U.S. on an L-1 visa for the past two years. Although she is in the process of adjusting her status, she needs to return to Belgium for a month. Under her visa type, she is permitted to travel; therefore, she does not have to apply for Advance Parole before leaving the country.

Aliens in the U.S. should, prior to departure, obtain Advance Parole in order to re-enter the U.S. after travel abroad if they have:

• Filed an application for adjustment of status but have not received a decision from the USCIS;
• Hold refugee or asylee status and intend to depart temporarily to apply for a U.S. immigrant visa in Canada; and/or
• A bona fide reason to travel temporarily abroad.

Aliens in the U.S. are not eligible for Advance Parole if they are:

• In the U.S. illegally;
• An exchange alien subject to the foreign residence requirement.

As with re-entry permits, Advance Parole does not guarantee admission into the U.S. Rather, aliens with Advance Parole are still subject to the immigration inspections process at the port of entry.

A refugee travel document allows people who are or once were refugees or asylees to return to the U.S. after travel abroad. The refugee or asylee should apply for this benefit before leaving the U.S. In some cases, immigration officials may issue travel documents to refugees or asylees who are physically outside of the U.S. See 8 C.F.R. § 223.2(b)(ii).

Keeping Immigrant Status

Many foreign nationals believe obtaining lawful permanent resident (“LPR”) status in the U.S. ends their immigration concerns. LPR status is not necessarily permanent; it can be lost, either intentionally or by accident, especially if the person remains outside of the United States for too long.

LPRs who go abroad generally have three ways to reenter the U.S. First, if they are out of the U.S. for less than a year, they normally reenter on the strength of their foreign national registration receipt card (Form I-551), more commonly called a green card. Second, they may apply in advance for a reentry permit (Form I-131). Third, they may apply for a special immigrant visa as a returning resident at a U.S. consulate or embassy overseas. None of these three ways is foolproof, though.

The IIRIRA may affect how inspectors treat returning LPRs. INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) states that an LPR is not regarded as seeking an admission into the U.S. unless certain factors apply:

(1)The LPR has been absent from the U.S. continuously for more than 180 days. In other words, LPRs who leave the U.S. for less than six months and then reenter should have no problems getting back in. CBP will not even consider them to be seeking an admission. By contrast, if an LPR has been outside the U.S. for more than six months, he or she will have to be formally readmitted, and all the grounds of inadmissibility will apply.

(2) Whether an LPR will have will have to go through admission upon reentry also depends on whether he or she is deemed to have abandoned LPR status. Here are some factors in deciding whether an LPR has abandoned his or her status:

1. length of absence;
   
2. whether the LPR maintained a residence in the U.S. while overseas;
   
3. whether the immigrant was employed in the foreign country;
   
4. whether his or her family accompanied him or her to the foreign country; and
   
5. whether the immigrant maintained ties with the U.S., such as property holdings, bank accounts, and family.