8/10/2019 Immigration and Nationality Act

1/5

lneliolb iI,:6 ard

Waivers: Laws

Ineiigibilities

and

Waivers:

Laws

Oveni ew

Ihe

lmml rarion and Nntr.nality

Act

(INA)

esrab lshes

lhe ryres ol v

sas

6vail:b

e

f.r

t.avet t the Lrnlred States

ar:a

.;hr'

.onnl.ons must

be met b3fore an

ap:li.ant

car

be

ss .i

.

arric Lar

lype ci s..

the

stliirtc.s h

ch

mike

a

visa

arpt .a.t

nelrqible

for

a

visai

called vlsa lne tqrbtlr

es, E.e

tu id nlhelNAi

anrj

oth.r

imnl,rrat

on

l.ws.

ate riLA.lso. it.r.5,f.rist...;

lor

ce.t-in l:eligible ppllc.nts

to aa,p

y

LrvE

eers.a

the

r

i.eii ibiltly.

alare.

;r

visa

appllcanr ?tplies ior. visa,

a

co.s

ar.il..r al

a U.S. ernbass.r fi consulare

n{ s de the

Lln

ted

Sr.t.r nete.n

..s

dhether

th.

appl cani

r

q alined,

ufde.

all .pp icab e Ll.S.

l

rs,

trr

rt.evc

the

pa.ticuler

,]tre

rirpt;ed ior,

Apri;c..ts ioui.l

nuaiaied

lre is$ued

visas after ail iecessary

processl

rs

.0mp

eled, Howevr., when

the ccfisriar office. dete.mrn.r

rh.r

ih.

rrpllcanl

s

ineligible

tr,crve

a sa,

he

vls:

- pl:..iion

s

denied. The

dppti.arr

siniormedverba

yij.Ctnriaint.tth.

reasor

i.r

inlal based on the appli.able

sectionlsl

oJ

l. 1.

iev

ew Visa Denials

lcf

ansvlers to

q estions

abor:

i:a

denlals, inel

griri

iiy, dtscussioi

oi selerat rntigibi tt), examp

.s,

rver.om

n

isa ineliqrbi

ty,

r.?pplyrng for

a

visn,

.nd

traivers of iieigibitlay,

Below are

lhe sert cns of the INA for

.

Visa

Ineli9ibilitaes

.

Waivers

of

Ineligibility

Addit

onally, to vret the INA

in tsentiretybytdc,chapter,andsectiln,aswellasotherimmqralion-reLatdl6ws,qototheir. 1.

Cillzenshlp and tmmlqratiof

Seruices

(USciS)

website.

Visa

lneligibilities

Se.ai.'n 2i40,)

ofth

lrnmiEration and

NatidrdityALt

S.r:tion 221(g)

ofthe

Inrmig:nrion

mdN.tir,rliR .{ct

S.dion 2e(a) ofthe

lnlig.atioh

ed

N{iodrlitr A.t

G)

Heallh-rclat.d

srounds.

-

(A)

In

qeieral.

aiy

a|e.

-

(i)whosdeternrned(inac.o-n:nc.lvith.egllationsprescribedb./theSs..::.yofHealtlr.ncFiumanServ.es)io

llle a comrinni.ablc

d sease cr

p 51i.

hea th

si niij.arrc;

{i )

ercept as

provlded

in subprr rleh

(c),

seers

-dmLss

on as an immi rant, .r //ho serns adl s.n..r or stat s to

rlie

slat s

of an

a

en

lawfullf

.lIr:t.d

Js

permaieil

residence, and who h.s l.il.d to

prsrt

i.. ment.t on ol

i-ving recerved vaccinatlon

a eln5 n..ine-prevantab e diseases, which slril

ifclrde

at least

the

a.low n9 dlseases:

mrnps,

measl.s,

rubelln,

p.lo,

tetar s ard

diphthera toxoids,

pei. $s,

rnl nza type ts anc nepatitls B,

and.ny

o:ir.r

v.cclnnl

.ns aqainst v.ccine-preventable

d

sease rec.mnended

by theAdvsory Clmmlrtee for lmmunizaiion

P.aCr ces,

(i

i) who

s detern ned

(in

....rdance

wit:r

.eg l.ilcns

prescr

bed by

ihe se..eta.y ol ilealih

anC

H man

services in

.cnsLrllalior

,rith

lhe Attn.rey G.neral)

(I)to

trave

a

phys

cal

cr

1era:l

C

sordi

ar'rd b.lavior

asso.iated

wilr

the disorder tirat mny

pcse,

o.

iras

p.sed,

a ihrai .c aie

propea ,

saie.y

or

' efare

of

lhe

a ien or others, or

(11)

lo

fele

had

a

physlca

or flrenta dlscrn.f

a.d .

hrstory of

beh.vi.i

ss4.lated

witr

i:r: Cisorder,

wh ch

behavicr

ir.s

posed

a

lhreal to lhe

..operly,

r;ielf,

or welfare oltic

-licn

or others anC

*llch

L'ehav or

is

llely

lrtlr//travel.slate.gov/ctrten visas/ehslish/qehsal,ri

re

is

bir

ti6.1rtmi

1'l

8/10/2019 Immigration and Nationality Act

2/5

lnellgibll li6 and Wa vers Laws

to

rec .

or

io

lead

to.rrr.r

harniul befavior, or

ii,

vrho s deiern

ned an a..o'Ca... lillr rcqulalions

prescibed

b./ th.5e.rctarl/ ol HeaLiir .r

rl T .

5.rlc.r) ..

t:. d. g

ablser cr

adil.l,

s lnadn

sslb.

'.1r.r,:- .-ii..:i.d.-Frr

Ficv

ilon aulhor 2rn9 \ra

ve

ol certarn clauses ol sdbpara -r.f

ai),

se. . bsect on

(gl.

: :--ja

i

'i::1

|1r'lLi,l:U ATION aEqUIRal,lEl,ll

FCa

ADaPTED CIiILDREN 10

YEARs CF ACE OR YOI.TNCER. C

3 .

r iot.o op , ito...,

.

I .:.':

;; aq. or

yolnqer,

s c::.-ibed n

se.t

on 10r(b)i1)(rt,

ara

,:sseEkL.ganir.mqrentvsaasar

fim.d.i

rzl:ta_. under sect oi

20l(b), li,p.:.r.nlh.:nmc

8/10/2019 Immigration and Nationality Act

3/5

t_ i

-ri20t4

:t21(g)

221l.9)

Iiectiot

::t{g} o, ah. :'1*itretion and

Xrtionality

Act

Il

is

often the

case

when an applicant

for

a

visa

is

told

that

a

final decision

cannot

Lre made

on his

visa application immediately. in

doing

so,

the mnsular

officer

invokessection

221(9) of the Immig ration and Nationality Act

and

inforrns

the

pplicant

that the

case

will be

put

on hold until the

applicant's

eligibility for the

visa

can

[re

determined.

This

processing

"time-out"

is taken frequentlyi approximately

more

than

1,100,000

visa applications were subjected

to 221(g) during 2012.

lechnically,

221(g)is considered a defial; in subsequent visa applications and

registration

in

the Eledronic

System

for

Travel

Authorization, this must

be disclosed.

I\Jeveftheless,

the overwhelming majority of

221(g) denials

are overcome and

visas

i: s ed-

l-here

are, in essence,

two

types

of

221(9) casesl

1.

Washington-related

"administrative

processing",

in

which a

clearance

or

approval is required

from an

interested

agenry or

agencies in

Washington, D.C.

2.

Post-related, in which

the

consular offrcer requirs

addltionaltime, information,

or

doo-rmentation before making

a finalvisa

decision,

Clearances

from Washington

are required when

the

applicant

presents

issues

of

security,

criminality,

legal

questions,

technology exports from the US, other

admissibility

problems,

[rr

is

from

a country of

concern. The

question

of a security

"hit"

can

arise

in

a

variety

[,f

situations,

such as

potential

terrorists,

individuals

who

previously

worked

as

military

a)r

other

attach6s in

the

US

for

an unfriendly country,

even

ifthat work took

place

decades before,

or

even individuals who spent

time

in ceftain

countries

(e.9.,

Iran).

l

o

resolve

these

issues,

a Security Advisory

Opinion

is needed. Often the

"hits"

arise

hecause

the

applicant has

a common

name:

other

individuals

with the

same

name

are

L,lacklisted,

causing

cases

of

mistaken

identity

or

prolonged

delays.

Suspeded

criminal

;divity

or

ties

(e,9.,

Russian mafia) can

also

lead

to

prolonged

processing

to allow

for

;n

investigation.

In addition,

consular

officers

refer

some

legal issues,

such as certain

rnaterial misrepresentations

made in

a

visa application,

to Washington for

a legal advisory

c)pinion. The

application

will

be

held in

abeyance

until

receiving

guidance

from the

Visa

Office Advisory

Opinion

section.

l\ widely

applicable

phenomenon

has been

administrative

processing

for

applicants,

Lrsually scientists,

researchers,

and

businessmen,

who

may

be

exposed to technologies

in

the

United States which fall

under

the Technology

Alert

List.

The

LJS

does

not want

sensitive technologies

to full into the wrong

hands,

In

such

cases, the

applicant

is

requested

to

provide

an

English-lan uage

resume, list

of

publicatlons,

and description

crfthe

proposed

work

to be

done

in

the US, which is

forwarded to

Washington.

rtt.:/v saretusa.com/221

g/

8/10/2019 Immigration and Nationality Act

4/5

,11912014

221|s)

Individuals

who

hail

from

certain

countries,

such

as

Iran,

Syria, Sudan,

must

be cleared

by

Washington,

Quite

often,

these

clearances

are

a

formality

and

simply a

question

of

time

to run

through

the

interagency

gamut.

However,

for

certain

types

of

clearances,

the

visa

validity

period

may be

limited.

Post-related

issues

can also

be

broad

in

scope. They

may include

investiqations

or

verifications

in

the

home

muntry

ofthe

applicant

or

requests

for

information

or documentation

relating

to

the

qualifications of

the

applicant

for

a

visa. A

mnsular

officer

may

seek

to investigate

or

veritr/

issues

such

as:

.

the

legitjmacy

of a marriage (e.g.,

send

an

investiqator

to the

home

ofthe

couple

applying

for

a

visa);

.

employment

of an

applicant

(e.9.,

ca

ing

an

appticant

company

to

veritr/

that

he

does

work there);

.

tax

filings

or information

(e.9.,

i:onflrming

with

the tax

inspectorate

the tax

number

of

an

entrepreneur);

.

pension

fund

payments;

authenticity

of

an

education

document (e.9.,

sendingan

inquiry

to the Ministry

of

Education

or a

school

or

university

to confirm

that

such

a diploma

was issued);

.

intentions

or

existence

of

a sponsor

(e.g.,

calling

the

United

States

to

speak

to the

signatory

ofan

affidavit

of

support);

.

or

authenticity

of

a

statutory

document,

such

as

a marriage,

bifth, or

dlvorce

certificate.

Additional

document

requests

may includei

.

a police

certificate

from

a

country

in

which

the

applicant llved after

the

age

of

16;

.

certified

copies

of couft

dispositions (arrests,

convictions);

confirmation

of

the

date

of

a

past

departure

from the

US

(e.g.

visa

overstay);

.

employer

tax documentation;

additional

affidavit

of support

(e.g,,

consular

officer

does

not

believe

that

the submitted

affidavit

of support

suffices);

.

job

offer

(e.9.,

a

Lottery

winner);

flnancial

documents (e.g.,

if

the

applicant

\^/ill

undergo

medical

treatment

in

the

U.S,);

.

and

additional information

about thejob

to be

performed

in

the

United

States

or

the

employer.

Siometimes,

the

jnitiation

or outcome

ofthese

investigations

can

be

erroneous.

For

example,

a

consular officer

may mistakenly

believe

that

an applicant

has a background

in

a technology

that

is

on

the

Technology

AIeft

List;

a

consular

investigator

may

visit the

wrong

office address;

a

secretary

who

picks

up the

phone

at the

applicant,s

place

of employment

may

tell

the

consular

caller

that no such

person

works

there

when

in

fact

the

applicant

does

work there;

a consular

officer may

be

attempting

to re-adjudicate

a

previously-approved

employment

petition

by

re uiring

additionaldocumentation

or

sending

it

back

to

USCIS.

]'his

is why

it

is

necessary

to

be

proactive

in

dealing

with

a 221(9)

decision

by

a

consular

officer. Applicants

should

cooperate

with

reasonable

consular

requests,

but

also

seek

htt.:/visareical.coT/221 g/

8/10/2019 Immigration and Nationality Act

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1M91?A14

221(9)

to aggEssively

challenge

questionable

requests, overreaching

demands, and

protracted

delays in

processing.

Ifyour

application

is

pending

under Section 221(9),

please

coniact us

to discuss

your

situation,