Section 221(g) and 212 of the INA outlines the general basis upon which the Consular Officer at the US Embassy may determine whether an applicant is ineligible to receive a visa. Several persons intending to travel to the United States, whether as immigrants (intending permanent residents) or non-immigrants (such as visitors, students or for medical reasons) may be ineligible to receive visas because of some prior act that they have committed, or failure to satisfy some requirement under the Immigration and Nationality Act (INA), 8 U.S.C.
The most frequent barriers for Guyanese applying for immigrant visas are prior criminal record, including drug trafficking offences; persons previously removed or deported; HIV infection, and violating the terms of the INA.
Many persons who are granted immigrant visas (such as B1/B2 visitor’s visas) remain in the US beyond their authorized period and become out of status. Staying beyond the period of time authorized by the Department of Homeland Security (DHS) and being out-of-status in the United States is a serious violation of U.S. immigration laws. Visitors traveling to the United States should always be aware of the dates of their authorized stay and ensure that they are following the procedures under the U.S. immigration laws.
It is important that visitors depart the U.S. on or before the last day they are authorized to be in the U.S. on any given trip, based on the specified end date on their Arrival-Departure Record, Form I-94. Failure to depart the U.S. will cause the visitor to be out-of-status, and in future, would be a ground of ineligibility for another visa, or may result in the immigration officers at the port of entry refusing to admit that person into the US.
Further, section 212(a) of the Immigration and Nationality Act provides that certain classes of persons are ineligible to receive visas and ineligible to be admitted to the United States, such as; health-related grounds, including HIV infection, certain classes of persons with physical or mental disorder or persons determined to be a drug abuser or addict. These grounds of ineligibility are subject to waivers.
With regard to HIV infection, section 212(a) (1) (9a) (i) of the United States Immigration and Nationality Act prohibits the issuance of an immigrant visa to any person with a communicable disease of public health significance (HIV/AIDS). Section 212(a)(4) of the aforementioned Act further prohibits the issuance of an immigrant visa to any person likely to become a public charge. To overcome this “public charge” ineligibility barrier, an intending United States immigrant visa applicant must demonstrate that the applicant has a means of support in the US and that he/ she will not need to use public financial assistance.
The prohibitive cost of treating HIV/AIDS in the United States, calculated at approximately US$85,500.00, means that in overcoming the “public charge” eligibility barrier, the applicant must be able to provide evidence of a capacity for self-support in this amount.
The United States Consular Officer may determine whether to waiver this ground of ineligibility if it is determined that the “public charge” eligibility barrier has been overcome. Other grounds of ineligibility under section 212(a) of the INA include, but are not limited to, criminal and related grounds, including conviction of certain crimes, generally a crime involving moral turpitude, or a violation of (or a conspiracy or attempt 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 (21 U.S.C. 802)). Trafficking in cocaine, traffickers in persons including persons trafficked for prostitution and commercialized vice, money laundering, security grounds, such as persons engaged in any activity to violate any law of the United States relating to espionage or sabotage; terrorist activities, misrepresentation, fraud, stowaways, smugglers are grounds for eligibility..
Waiver of Ineligibility
Aliens who are ineligible for a visa under one of the classes enumerated above may be eligible for a waiver of ineligibility under the provisions of the INA. The Attorney General has the sole discretion to waive certain classes of ineligibility.
Some of the main bases of ineligibility may be waived by applying for waiver from the relevant authority (usually the Attorney General)
Factors that are taken into consideration in determining whether to grant a waiver include, in the case of an immigrant who is the spouse or son or daughter of a United States citizen or of an alien lawfully admitted for permanent residence, if it is established that the refusal of admission to such applicant would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. Under section 212(d)(1), the Attorney General has a wide discretion to determine whether a ground for exclusion exists with respect to a nonimmigrant described under the Act, and may waive the application of certain provisions of the INA, if the Attorney General considers it to be in the national interest to do so.
After approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien may be admitted despite his inadmissibility, and be granted a visa, the alien may be admitted into the United States in the discretion of the Attorney General.
Generally, the Attorney General may, in his discretion, for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of certain bases of ineligibility, e.g., in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of removal, and who is otherwise admissible to the United States as a returning resident under section 211(b). Also, in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a), if the alien has encouraged, induced, assisted, abetted, or aided only an individual who at the time of the offence was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. Also, the INA provides that no court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver.
