In order to be admitted to the United States as a visitor, temporary resident, or immigrant, you must not be inadmissible.
The law on inadmissibility is can be found in Title 8, Chapter 12, Subchapter II, Part II United States Code, Immigration and Nationality Act. Section 1182 contains most of the rules on inadmissibility.
This article is of necessity a broad overview of a highly complex subject. Additionally, it does not cover specific additional requirements that only apply to those seeking to immigrate to the United States. There may be scope for additional waivers and exemptions not mentioned below. If you feel you may be affected by any of these, you almost certainly need professional advice from a United States immigration attorney.
The main reasons why a person is inadmissible to the United States are:
Criminal and related grounds
- Conviction, or official admission of guilt, for a crime involving moral turpitude (CIMT), subject to a potential exemption for a single offence committed before age 18 or involving a "petty offence".
- Any conviction, or official admission of guilt, for an offence involving a "controlled substance" (generally speaking, drugs).
- 2 or more offences (other than "purely political offences) where the aggregate prison term was 5 years or more.
- Note that a Police Caution (U.K.) and similar likely constitute an official admission of guilt.
There are other criminal related exclusions which do not require a conviction or other official admission of guilt:
- If the U.S. authorities believe the person has links to or is involved in:
- trafficking in controlled substances
- "unlawful commercialized vice"
- "trafficking in persons"
- money laundering
- terrorism or activities likely to endanger United States national security
- Certain persons who have asserted immunity from prosecution in the United States
Being arrested for an offense does not in itself make a person inadmissible to the United States, provided that either charges were dropped (or never made) or a court of law dismissed the charges without conviction or any official admission of guilt.
If there is inadmissibility, it may be waived at the discretion of the U.S. authorities, subject to the following:
- The only drug offense for which waiver may normally be given is possession of less than 30g of marijuana
- For immigrants, 15 years must normally have passed or there must be extreme hardship to a U.S. citizen or permanent resident close family member
- No waiver can normally be given for offences of murder, attempted murder or conspiracy to murder, or an "aggravated felony".
- Persons with specified contagious conditions or physical or mental disorders likely to cause harm to others
- Those determined to be a "drug abuser or addict"
- Other health related grounds for inadmissibility normally only affect immigrants.
Overstays and Illegal entry
- Those who enter the United States other than at an approved crossing point
- Former overstayers in the United States
- Overstay of 6-12 months attracts a 3 year ban (starting with date of departure).
- An overstay of 1 year or more attracts a 10 year ban
- Exceptions exist, for example time before age 18 does not count.
- Those previously removed or deported from the U.S. may face a longer ban, or even a lifetime ban.
Fraud and Misrepresentation
- A person who has previously obtained a visa or admission to the United States by fraud or wilful misrepresentation of a material fact.
Other (unusual for those seeking to enter as visitors)
- Former U.S. citizens determined to have renounced their citizenship to avoid taxation
- Those who have left the United States to avoid a draft into the military
- Any person involved with Nazi regime persecution between 1933 and 1945
- Any person intending to practice polygamy in the United States
- A person who has withheld custody of a U.S. citizen child (in a country not part of the 1980 Hague Convention on International Child Abduction)
- A person who has voted in a U.S. election (as a non citizen) or claimed to be a U.S. citizen to obtain a benefit under Federal or State law
- Foreign government officials who have violated religious freedom
- Those assessed to be likely to become a "public charge" in the United States.
- (Immigrants only), those who are members of the Communist Party or other totalitarian party, subject to exemptions for past membership and also "involuntary" membership.