Integrity Legal

Posts Tagged ‘Inadmissibility’

5th May 2011

It recently came to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) has recently updated some of the information with regard to that agency’s official fact sheet pertaining to I-864 affidavits of support. To quote directly from the official website of USCIS:

In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Those reading this blog are encouraged to click on the hyperlinks above to read more and gain insight into the issues associated with the I-864 affidavit of support.

It should be noted that the issues associated with the I-864 affidavit of support are significant and should not be overlooked by those seeking immigration benefits. Furthermore, the issues associated with the I-864 affidavit of support pertain not only to USCIS in the United States, but also impact the Consular processing phase of U.S. Immigration process for those who are seeking United States immigrant visas, such as the IR-1 visa and the CR-1 visa, abroad. Meanwhile, seekers of visas such as the K-1 visa (for fiancees of US Citizens) must submit a similar document to a US Embassy or US Consulate abroad in the form of an I-134 affidavit of support. Bearing this in mind, the reader should take note of the fact that the issues surrounding the I-864 affidavit of support are likely to come to the forefront for K-1 visa holders when they eventually apply for adjustment of status to lawful permanent residence.

There was an interesting notation on the aforementioned website:

Note: In general, lawful permanent residents who currently possess a “green card” cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible.

The reader is encouraged to bear in mind the fact that the above quotation is speaking in generalities, but the issue of naturalization in the context of the affidavit of support may be of interest to Americans thinking about bringing a loved one to the USA. The reason that Americans may find the issue of naturalization interesting when discussing family immigration stems from the fact that upon a foreign spouse’s naturalization to US Citizenship, the encumbrances placed upon the American Citizen within the provisions of the affidavit of support are extinguished as upon becoming a United States Citizen a previous foreign national becomes eligible in their own right for government benefits (where applicable). Therefore, the previous sponsor(s) are no long liable to the United States government should the newly-naturalized citizen take government benefits.

For related information please see: Certificate of Citizenship or Child Citizenship Act.

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8th December 2010

For those who frequently read this web log will undoubtedly note that a frequent topic discussed within these pages is Comprehensive Immigration Reform. In a recent document promulgated by the Congressional Research Service and distributed by the American Immigration Lawyers Association (AILA), the matter of legal inadmissibility was discussed in the context of Comprehensive Immigration Reform. The following is a direct quotation from the document published by the Congressional Research Service (CRS) and distributed by AILA:

Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.

Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:

The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.

Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:

While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.

Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.

For related information please see: US Visa Denial.

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2nd November 2010

It recently came to the attention of this blogger that the Ombudsman for the United States Citizenship and Immigration Service (USCIS) has made some recommendations regarding the processing procedures associated with the I-601 waiver. To quote directly from a recent Memorandum sent to CIS Ombudsman January Contreras from USCIS Director Alejandro N. Mayorkas:

The CIS Ombudsman recommends that USCIS:

• Centralize processing of all Forms 1-601 to deliver faster and more standardized
adjudication; .

• Provide for concurrent filing of Form 1-601 and Form 1-130, Petition for Alien Relative;

• Prioritize the finalization of its overseas case management system (currently in
development) to provide for accurate statistical reporting of Forms.1-601, allowing for:
(1) posted processing times, and (2) tracking via the “My Case Status” feature on the
USCIS website;

• Publish clear filing instructions to guide customers in need of expedited Form 1-601
processing;

• Improve coordination between DOS consular· officers and USCIS adjudicators who work
with Forms 1-601 at CDJ; and,

• Amend CDJ’s office policy to allow USCIS employees to request digitized Alien Files
(A-files) upon receipt of interview schedules.

Some of these issues have been raised by those with cases pending before the United States Citizenship and Immigration Service or a US Embassy or US Consulate overseas. The aforementioned memorandum is quite extensive and those interested in learning further should check out the full memo online. That said, USCIS responded to many of the issues raised by the Ombudsman. For example, the memo noted the following:

1. Centralize processing of all Forms 1-601 to deliver faster and more standardized adjudication.

USCIS Response: USCIS agrees in part.

USCIS is currently evaluating different organizational models for processing Forms 1-601 filed overseas, with the aim of enhancing consistency and efficiency, optimizing use of USCIS resources, and further decreasing processing times for cases that cannot be quickly approved. While centralization is one model that could further these goals; other models, such as bispecialization (i.e.,processing particular forms in two locations only), may have some advantages…

The memorandum went on to reply further:

2. Provide for concurrent filing of Form 1-601 and Form 1-130, Petition for Alien Relative.

USCIS Response: USCIS is considering this recommendation.

In April 2010, USCIS formed a working group under the leadership of the Office of Policy and Strategy to explore concurrent filing and any possible challenges to implementation. Because the change in our process could result in unanticipated complications, it would have to be done in a manner that carefully manages applicant expectations and USCIS resources. The working group is focused on evaluating the feasibility and benefits of the potential process change…

This suggestion could prove interesting in practice as the dynamics of concurrent filing may not be feasible. As the tone of the above citation implies, there may be a great deal of study before such a suggestion could be acted upon. Meanwhile, under the current processing scheme those who need an I-601 waiver outside of the United States must first be deemed inadmissible in a visa adjudication conducted by a Consular Officer at a US Mission, US Embassy, or US Consulate abroad. Therefore, simultaneous application submission as suggested above may not comport with current processing procedures.

3. Prioritize the finalization of its overseas case management system (currently in development) to provide for accurate statistical reporting of Forms 1-601, allowing for: (1) posted processing times, and (2) tracking via the “My Case Status” feature on the USCIS website.

USCIS Response: USCIS agrees.

USCIS is pleased to report that the USCIS overseas case management system, which has been an Agency priority over the course of FY2010, was released for use by all International Operations staff on August 16, 2010.

Hopefully, measures such as those noted above will lead to further streamlining of the overall United States Immigration process.To quote the memorandum further:

4. Publish clear filing instructions to guide Customers in need of expedited Form 1-601 processing.

USCIS Response: USCIS agrees.

USCIS is in the process of updating its International Operations Division’s standard operating guidance on Form 1-601 adjudications to address requests for expedited processing.

Hopefully, new guidance about expedited processing will assist petitioners and beneficiaries in understanding how to go about requesting expedited processing in cases where such service is warranted.

5. Improve coordination between DOS consular officers and USCIS adjudicators who work with Forms 1-601 at CDJ.

USCIS Response: USCIS agrees.

USCIS agrees that DOS consular officers and USCIS adjudicators should maintain close coordination at CDJ and all other overseas posts. All USCIS overseas offices closely collaborate with their DOS colleagues. In CDJ, DOS consular officers and USCIS adjudicators discuss shared concerns every day. The USCIS CDJ Field Office Director and the Immigrant Visa Chief also maintain daily contact…

In many ways, cooperation between officers at different government agencies represents one of the best hopes for an overall streamlining of the visa process. Although, those interested in understanding the I-601 waiver process should note that there are some functions that must be performed by Consular Officers and some that must be performed by USCIS Officers. In any case, effective communication between multiple individuals and agencies is likely to result in more convenience for those seeking an immigration benefit.

6. Amend CDJ’s office policy to allow USCIS employees to request digitized Alien Files (Afiles) upon receipt of interview schedules.

USCIS Response: USCIS agrees in part.

USCIS agrees that A-file records (whether digitized or hard copy) should be requested early in the adjudication process and is evaluating procedures to achieve this goal without significantly delaying the process.

Although digitized records represent further efficiency, it may take time to implement the recommendation noted above.

The process of obtaining a visa or an I-601 waiver of inadmissibility can be difficult to understand for those unaccustomed to the immigration process. In many cases where involving I-601 waivers, individuals or couples sometimes opt to retain the assistance of an American attorney experienced in United States Immigration matters as such individuals are licensed to provide advice and counsel in matters pertaining to US travel documents and waivers of inadmissibility to the USA.

Fore related information please see: US Visa Denial or K1 visa.

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3rd September 2010

Those who read this blog on a regular basis may have noticed that the administration routinely posts information about efforts by various law enforcement authorities to discourage human trafficking. Unfortunately, as the world becomes increasingly integrated due to globalization the instances of human trafficking seem to be rising. This apparent increase could be due to the fact that there are more media outlets covering this issue, but this author believes in giving credit where credit is due and many of those apprehended by American authorities were caught thanks to the diligent efforts of American and international law enforcement agencies and organizations.

To quote a recent story from the Associated Press that this author found distributed on the internet by Google:

HONOLULU — Six recruiters were accused Thursday of luring 400 laborers from Thailand to the United States and forcing them to work, according to a federal indictment that the FBI called the largest human-trafficking case ever charged in U.S. history.

The indictment alleges that the scheme was orchestrated by four employees of labor recruiting company Global Horizons Manpower Inc. and two Thailand-based recruiters. It said the recruiters lured the workers with false promises of lucrative jobs, then confiscated their passports, failed to honor their employment contracts and threatened to deport them.

Once the Thai laborers arrived in the United States starting in May 2004, they were put to work and have since been sent to sites in states including Hawaii, Washington, California, Colorado, Florida, Kentucky, Massachusetts, New York, Ohio, South Carolina, Tennessee, Texas and Utah, according to attorneys and advocates.

Many laborers were initially taken to farms in Hawaii and Washington, where work conditions were the worst, said Chancee Martorell, executive director for the Los Angeles-based Thai Community Development Center, which represents 263 Thai workers who were brought to the U.S. by Global Horizons.

A woman who answered the phone at Global Horizons’ Los Angeles office refused to take a message seeking comment Thursday.

The six defendants include Global Horizons President and CEO Mordechai Orian, 45; Director of International Relations Pranee Tubchumpol, 44; Hawaii regional supervisor Shane Germann, 41; and onsite field supervisor Sam Wongsesanit, 39. The Thailand recruiters were identified as Ratawan Chunharutai and Podjanee Sinchai.

They face maximum sentences ranging from five years to 70 years in prison, according to the Department of Justice.

The penalties imposed upon those who engage in human trafficking activities can be severe. This is likely due to the fact that this activity often leads to many negative results as noted in the story above. Many of those who are smuggled from one country to another are forced to work under inhumane conditions that are considered to be illegal in many jurisdictions.

This author is pleased to see public resources being expended upon truly worthy law enforcement programs such as this. Thwarting the activities of human traffickers should definitely be a top priority for international law enforcement agents. Hopefully, arrests such as those noted above will discourage and deter individuals in the future as such activity has an extremely detrimental impact upon society as a whole.

It should also be noted that human trafficking is considered by US Immigration authorities to be a legal grounds of inadmissibility. Therefore a finding by a Consular Officer that an individual previously engaged in human trafficking may lead to visa denial in a pending immigration petition or application. Furthermore, this ground of inadmissibility is unlikely to be remedied through use of an I-601 waiver.

For related information please see: US Visa Thailand.

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25th May 2010

As the world becomes ever more integrated due to economic globalization international organized crime has increased. One issue that has become increasingly concerning for law enforcement agencies around the globe is human trafficking. Many of the people in less developed nations wish to travel to wealthier industrialized countries in order to enjoy the benefits of relatively higher wages. This leads to the growth of “human smugglers” who specialize in assisting illegal immigrants by transporting them from their home country to their desired destination. Unfortunately, a great deal of evidence has been brought to light which suggests that many of these immigrants are placed in conditions which could easily be described as inhumane and many of them are further forced to work under difficult conditions in order to pay back their smugglers for transporting them to their new country.

Recently, the website ThaiVisa.com posted the following:

“Two Japanese men have been arrested in Thailand on suspicion of people smuggling, a police spokesman said Tuesday. The first man, identified by police only by his surname, Bekku, was arrested Monday when he tried to renew his visa. The second man, Tanaka, was arrested later at his apartment in Bangkok. The pair, both in their 60s, are accused of involvement in smuggling people from Thailand and its neighbouring countries. ‘They were arrested on warrants issued by the Japanese police on charges of human smuggling,’ said the spokesman, Major General Manoo Mekmok.”

Under Section 212(a)(2)(H)(i) of the United States Immigration and Nationality Act:

Any alien who commits or conspires to commit human trafficking offenses in the United States or outside the United States, or who the consular officer, the Secretary of Homeland Security, the Secretary of State, or the Attorney General knows or has reason to believe is or has been a knowing aider, abettor, assister, conspirator, or colluder with such a trafficker in severe forms of trafficking in persons, as defined in the section 7102 of title 22, is inadmissible.

Clearly, United States Immigration law takes the issue of human trafficking very seriously as it should since human trafficking is a major issue that causes many deaths each year while concurrently undermining the foundations of international law. Furthermore, those who are found guilty of offenses involving human trafficking are likely to be found inadmissible to the United States of America indefinitely as this ground of inadmissibility cannot be remedied through use of an I-601 waiver.
To learn more about US Immigration please see: US Visa Thailand.

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7th April 2010

As this author has discussed in previous blog posts, one major reason for US visa denial is based upon a finding that a legal grounds of inadmissibility exists in a given case. One legal grounds of inadmissibility is based upon a finding by the Consular Officer that the applicant committed a Crime Involving Moral Turpitude (CIMT). That being said, at times it can be difficult to determine whether or not an individual’s prior actions would be considered a crime involving moral turpitude. The Foreign Affairs Manual (FAM) provides some insight into what types of crimes are considered to be crimes involving moral turpitude, the following are excerpts from the FAM:

“9 FAM 40.21(a) N2.3-1 Crimes Committed Against
Property
(CT:VISA-1318; 09-24-2009)
a. Most crimes committed against property that involve moral turpitude
include the element of fraud. The act of fraud involves moral turpitude
whether it is aimed against individuals or government. Fraud generally
involves:
(1) Making false representation;
(2) Knowledge of such false representation by the perpetrator;
(3) Reliance on the false representation by the person defrauded;
(4) An intent to defraud; and
(5) The actual act of committing fraud”

Property Crimes are not the only activities that can be construed as crimes involving moral turpitude as criminal actions which violate or undermine governmental authority are also considered to be CIMT:

“9 FAM 40.21(a) N2.3-2 Crimes Committed Against
Governmental Authority
(CT:VISA-1318; 09-24-2009)
a. Crimes committed against governmental authority which fall within the
definition of moral turpitude include:
(1) Bribery;
(2) Counterfeiting;
(3) Fraud against revenue or other government functions;
(4) Mail fraud;
(5) Perjury;
(6) Harboring a fugitive from justice (with guilty knowledge); and
(7) Tax evasion (willful).”

The FAM also goes on to note the various activities that may not be considered CIMT. However, it is incumbent upon the adjudicating officer to examine the facts of a given case and make a decision as to whether the underlying actions that gave rise to a criminal conviction in fact constitutes a Crime Involving Moral Turpitude for purposes of visa issuance. If the officer decides that a CIMT was committed, then the visa application will likely be denied. Under the doctrine of Consular NonReviewability (also known as Consular Absolutism) this decision is not subject to appeal. However, the applicant make be able to overcome the visa denial by applying for, and obtaining, an I-601 waiver.

Of interest to some may be the recent Circuit Court decision which held:

“An order of removal from the United States was entered against Petitioner Armando Alvarez-Reynaga based on his felony conviction for receipt of a stolen vehicle in violation of section 496d(a) of the California Penal Code. His petition for review presents the questions of whether a conviction under that statute qualifies categorically as a conviction for an aggravated felony, and whether it qualifies categorically as a crime involving moral turpitude. We conclude that it qualifies as the first, but not the second. We deny the petition for review.”

As the law continues to evolve, so to does the definition of CIMT and the activities that are considered to be covered by the CIMT provisions of the Immigration and Nationality Act.

For more information about US Visas from the Kingdom of Thailand please see: US Visa Thailand.

(Readers should be advised that the above does not constitute a full analysis of CIMT issues. Each application has its own unique set of facts and those facts must be analyzed on an individual basis in order to form a professional opinion.)

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5th February 2010

In cases where a US visa application is denied it may be possible to remedy the visa denial by applying for a waiver if the denial was based upon a legal grounds of inadmissibility. This type of waiver is called an I-601 waiver. At one time, if a United States visa applicant was infected with the Human Immunodeficiency Virus (HIV), then they would be denied a visa visa based upon this factor alone, if no other issues existed that called for a denial. However, recently the United States Immigration authorities have changed this rule. To quote a document promulgated by the American Immigration Lawyers Association (AILA):

“[I]nfection with the Human Immunodeficiency Virus (HIV) is no longer a ground of inadmissibility. If you have the HIV infection, you are no longer inadmissible to the United States, and are no longer required to file Form I-601 because of your HIV infection. As part of the revisions to Form I-601, any reference to HIV infection in the form and the instructions were removed.”

This is not the only rule change that has been recently promulgated as the filing instructions themselves have recently changed in order to more accurately reflect the proper filing locations as well as other regulatory modifications.

“In addition, USCIS… announced that there are revised filing instructions and addresses for applicants filing Form I-601, Application for Waiver of Ground of Inadmissibility. The change of filing location is part of an overall effort to transition the intake of benefit forms from USCIS local offices and Service Centers to USCIS Lockbox facilities. By centralizing form and fee intake to a Lockbox environment, USCIS can provide customers with more efficient and effective initial processing of applications and fees.”

The “lockbox” method is currently employed when processing immigrant visa applications such as the IR-1 visa and the CR-1 visa. This allows USCIS to streamline the application process as all applications are submitted to one location. K1 visa applications as well as K3 marriage visa applications are submitted directly to the USCIS Service Center with appropriate jurisdiction.

In situations where an I-601 waiver application is submitted overseas, the application is usually submitted at the US Embassy or US Consulate where the visa is denied. This allows the Consular Officer to make a recommendation regarding the waiver application. Those interested in US visa waivers should note that only licensed United States attorneys or accredited representatives are allowed to represent clients before both the United States Embassy and the United States Citizenship and Immigration Service (USCIS). That being said, only an attorney is entitled to charge fees for such services as accredited representatives are usually not-for-profit agencies who only charge a nominal fee (if anything) when assisting immigrants. Those who are not licensed to represent clients is US Immigration matters cannot charge a fee to represent clients in Immigration proceedings pursuant to US law.  For more information please click here.

For more information about American visas and the remedies available upon application denial please see: US Visa Denial.

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12th January 2010

In a recent posting on the American Immigration Lawyers Association website the author noticed a revised list of the vaccinations that are required for those seeking Immigration benefits for the United States. Below is a direct quote from the AILA publication:

Under the immigration laws of the United States, a foreign national who applies for an immigrant visa abroad, or who seeks to adjust status as a permanent resident while in the United States, is required to receive vaccinations to prevent the following diseases:
Mumps
Measles
Rubella
Polio
Tetanus and Diphtheria Toxoids
Pertussis
Influenza Type B
Hepatitis B
Any other vaccine-preventable diseases recommended by the Advisory Committee for
Immunization Practices

This information could prove useful for those assisting a prospective immigrant. This being said, the rules and required vaccinations can be subject to frequent changes. Also, the US Embassy in Bangkok maintains a list of hospitals that are permitted to conduct medical examinations for US Immigration purposes. This list is subject to change and as a result those seeking medical examination for visa obtainment purposes would be wise to contact the United States Embassy in order to obtain the most up-to-date information.

In recent months, the United States Department of State and the Center for Disease Control have changed some of the rules regarding communicable diseases and United States Immigration. HIV has been taken off of the list of diseases that will act as a bar to admission into the United States. Therefore, those who previously were inadmissible to the USA due to the fact that they had HIV no longer need an HIV waiver (also known as an I-601 waiver) to overcome their inadmissibility and may now be eligible to enter the United States provided they meet other Department of State and USCIS requirements.

The United States government has a responsibility to make sure that those entering the USA are not carrying diseases that could pose a threat to the American Citizenry. To this end, Embassy staff and Civil Surgeons at overseas hospitals take their job very seriously. In Thailand, a major issue for some applicants is Tuberculosis. Some applicants are found to have or have had TB. In these situations, a battery of tests must be conducted in order to ensure that the disease has been eradicated and the applicant is no longer contagious.  For those who had TB in the past, a thorough search of the applicant’s medical records is conducted in order for the Civil Surgeon to be certain that the applicant no longer poses a threat to others. Although sometimes frustrating, the Medical Examination process is a necessary component of the due diligence conducted by the United States Embassies and US Consulates abroad.

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31st October 2009

As reported previously on this blog, HIV is to be taken off of the list of communicable diseases which can cause an Immigrant to be deemed inadmissible to the United States of America. At the time of this writing, anyone who has HIV (Human Immunodeficiency Virus) is not admissible to the United States. This means that those infected with the virus must obtain an I-601 waiver of inadmissibility before they will be allowed to enter the United States. Under the new rule, this will no longer be the case.

To quote a document, provided courtesy of AILA, promulgated by the Department of Health and Human Services:

As a result of this final rule, aliens will no longer be inadmissible into the United States based solely on the ground they are infected with HIV, and they will not be required to undergo HIV testing as part of the required medical examination for U.S. immigration.

As a result of this rule change, it is highly likely that Embassy mandated medical examinations will be greatly altered as it will no longer be necessary for the Embassy-approved doctors (sometimes referred to as civil surgeons) to test prospective immigrants for HIV.

This rule change reflects the new policy of the United States government regarding HIV. Basically the Center for Disease Control and the authorities at the Department of Homeland Security no longer consider HIV a “communicable” disease as defined in the relevant provisions of  Immigration and Nationality Act. To further quote the aforementioned document:

While HIV infection is a serious health condition, it is not a communicable disease that is a significant public health risk for introduction, transmission, and spread to the U.S. population through casual contact.

Please note that this rule has not taken effect and until it does HIV is still considered a communicable disease in cases involving inadmissibility.

Although many laud the promulgation of this rule, there are those, particularly in the LGBT community who feel that the current Administration is not doing enough to provide immigration benefits to same sex couples. Many view this rule change as a “half measure” designed to placate advocates for gay rights as HIV has a major impact upon the gay and lesbian community.

Although this rule change will effect those with HIV who wish to enter the USA, it does not effect same-sex bi-national couples who cannot obtain US Immigration benefits for a foreign partner based upon the current federal laws which do not recognize same-sex marriage. There are many who feel that the rescission of this rule regarding HIV infected immigrants falls short of full immigration equality for all.

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12th September 2009

Every year, many people from all over the world enter the United States of America and remain temporarily. As previously mentioned on this blog and on this website, there are many different types of non-immigrant visas for those who wish to go to the United States and remain for a short period of time or for a particular endeavor which has a definitive chronological endpoint.

United States Tourist visas are a prime example of a non-immigrant category visa that can grant the applicant a long duration of stay. This type of visa is meant for those entering the USA for recreational purposes who intend to leave after their vacation has ended. US Student visas are meant for those who are traveling to the United States to engage in a course of study. Finally American Exchange visitor visas are designed for those who wish to travel to America to live and/or work in a travel exchange program.

With any of the aforementioned visa categories the underlying visa’s validity has an end date. When the non-immigrant visa’s expiration date arrives, the applicant must either depart the United States or seek an extension. An US visa extension is similar to a Thai visa extension in that the applicant must apply for the extension while in the country and if granted, the applicant may remain for longer than the initial visa’s validity.

Those who do not depart or extend are considered in violation of their visa as they are overstaying its validity. In US Immigration circles, the alien is deemed to be in the United States “on overstay.” The longer a violator remains in the United States the higher the probability that the violator will be caught and either removed from the country or given the option to voluntarily depart.

After departing the United States due to overstay, the alien may be deemed inadmissible depending upon the duration of the overstay. Further, the duration of the bar on reentry depends upon how long the violator overstayed. The alien could be subjected to a 10 year bar if he remained in the US without lawful status for a long enough period of time.

In cases involving inadmissibility based upon overstay it may be possible to obtain a waiver of the inadmissibility. The applicant will need to file an I-601 waiver in order to clear up the overstay issue because if the waiver is granted the applicant will be allowed to reenter the country on either an immigrant or non-immigrant visa.

If the alien was removed from the United States because of an overstay, it may be necessary to file an I-212 application for permission to apply for reentry. That being said, either application is approved only at the discretion of the adjudicating officer at the United States Citizenship and Immigration Service.

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