What is an ineligibility?
If a consular officer finds you are not eligible to receive a visa under U.S. law, your visa application will be denied (refused), and you will be provided a reason for the denials. There are many reasons a visa applicant could be found ineligible for a visa. These reasons, called “ineligibilities”, are listed in the Immigration and Nationality Act (INA). Some ineligibilities can be overcome, either by you as the visa applicant, or in certain immigrant visa cases, you or your petitioner may request a waiver from the Department of Homeland Security. Other ineligibilities are permanent. This means that every time you apply for a visa, you will be found ineligible under the same section of law, unless a waiver of that ineligibility is authorized by the Department of Homeland Security.
What are some common ineligibilities?
Some ineligibilities may result from, but are not limited to, unlawful presence in the United States, misrepresentation, and certain criminal convictions. These will be explained in detail in the questions that follow.
What is a denial? Is a denial different than an ineligibility?
A visa denial is different than an ineligibility. A visa denial under section 221(g) of the INA means that the consular officer did not have all the information required to determine if you are eligible to receive a visa. This means you are not eligible for the visa now, but your case is pending further action. For example, your application may be incomplete and /or further documentation is required before a decision can be made.
I was found ineligible for a visa. Can I get my money back?
No. The fee you that you paid is a non-refundable application processing fee.
What is a waiver? What is a permanent bar to a visa? Is there a difference?
The Immigration and Nationality Act (INA) contains provisions that may allow a visa applicant who was denied a visa for a particular ineligibility to apply for a waiver of that ineligibility. The Department of Homeland Security (DHS) adjudicates all waivers of ineligibility. Waivers are discretionary, meaning that there are no guarantees that DHS will approve a waiver for you. Please note that some ineligibilities are permanent bars to receiving a visa, meaning that you will not be eligible for a visa in the future even if your circumstances change.
The officer stated that I was ineligible under INA 212(a)(9)(B)(i), unlawful presence? What does this mean?
You were refused, or found ineligible for, a visa under this section because you were considered to have been unlawfully present in the United States, if:
You stayed in the United States after the expiration date for the period of stay authorized by the U.S. Customs and Border Protection (CPB), without the required authorization to extend your stay; or
You entered and were present in the United States without receiving the required authorization from CBP.
I was found ineligible when I applied for a visa because of unlawful presence, how much time must pass before I can reapply for a visa?
When you are denied a visa for unlawful presence, you are ineligible for a visa for the following length of time:
When unlawfully present in the United States for 180 days or longer but less than one year, you are ineligible for a visa for three years after departure from the United States: or
When unlawfully present in the United States for one year or longer, you are ineligible for a visa for 10 years after departure from the United States.
What does an ineligibility under INA section 212(a)(6)(C)(i) mean?
You were refused, or found ineligible, for a visa under this section because you attempted to receive an immigration benefit by willfully misrepresenting a material fact or committing fraud.
What does a material fact in relation to 212(a)(6)(C)(i) mean?
A fact is considered material, as it pertains to this section of the INA, when, had the truth been known, you would not have been eligible to receive a visa or enter the United States.
Is there a waiver for 212(a)(6)(C)(i)?
There are some limited circumstances where waivers are available. For immigrant visas, an applicant who is found ineligible under this section may seek a waiver from the DHS under INA 212(i):
1. is the spouse, son, or daughter of a U.S. citizen or a lawful resident; and
2. it would result in extreme hardship to the U.S. citizen or lawful resident spouse or such parent of such applicant.
There is a discretionary waiver for nonimmigrants; the Consular section may make a recommendation to the DHS to grant the same if certain criteria are met.
I was found ineligible because I have previously been involved with the trafficking of controlled substances. What does that mean?
Any person who has been an illicit trafficker in any controlled substance or in any listed chemical, or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so.
Will my family members also be found ineligible if I have been involved with the trafficking of controlled substances under INA 212(a)(2)(C)(i)?
Yes, this ineligibility may apply to certain family members. A family member under these circumstances is considered the spouse, son, or daughter of a person found ineligible under INA 212(a)(2)(C)(i).
Is there a waiver for INA 212(a)(2)(C)(i)?
No, there are no waivers.
Further Information & Resources
The U.S. State Department
Department of Homeland Security
U.S. Customs and Border Protection
