JCraigFong

I have written this little article to address a question submitted to me several times in private e-mail by British Expat readers. With all the discussion of Crimes Involving Moral Turpitude (CIMT), I thought some commentary on the need for waivers and the waiver application process for nonimmigrant visas at AmEmb-London might be of mild interest. Obviously, this discussion is NOT dispositive of all questions. This article does NOT constitute legal advice; it provides an overview. No more.

My impression on this bulletin board is that everyone -- but EVERYone -- wants to avoid going to the AmEmb in London to apply for a B-1/B-2 or other visa, most especially if there has been an arrest, a formal or informal caution-and-release, or a conviction, regardless of fine, probation, or time served. I can’t say that I blame anyone for wanting to avoid this ordeal; however, doing the crime means -- at least for US immigration -- doing the time, as it were. Someone needing a waiver might find a modicum of consolation that s/he is in pretty good company: Kate Moss, Amy Winehouse, Boy George, and George Michael, to name only a few.

The cases most commonly dealt with at the US Embassy in London include crimes involving moral turpitude, controlled substance violations, and unlawful presence.

Crimes Involving Moral Turpitude. A conviction for a statutory offense involves CIMT if one or more of the elements of that offense have been determined to involve moral turpitude. Most commonly, these would be (I) fraud, (II) larceny, or (III) intent to harm persons or things. As I have commented in other articles, the definition of a crime involving moral turpitude is complex, involving a high level of legal analysis. And if *I* am shy about nailing down the definition, Bucko, then laypersons should be doubly cautious about ladling out advice on the question.

Controlled Substance Violations. A substance violator is one who violates any law or regulation of a state, the United States, or a foreign country relating to a controlled substance. “Controlled substance” is defined in the Controlled Substances Act §102. Please note: the definition of “controlled substance” in the country where the offense took place is largely irrelevant to the United States government.

Unlawful Presence. Generally, an alien is unlawfully present in the United States after the expiration of the period of stay authorized by the I-94 Arrival-Departure Document, or who is present in the United States without being admitted or paroled. There are other situations in which a foreigner might find him or herself “unlawfully present” in the United States; however, for the purpose of this discussion, I will ignore those other situations. The foreigner becomes inadmissible to the United States if he or she was unlawfully present for over 180 days.

A foreign national who falls into one of the above categories is inadmissible to the United States, unless a waiver of admissibility is granted.

Waivers. A waiver of inadmissibility under the Immigration and Nationality Act §212(d) allows a foreigner to be temporarily admitted to the United States as a nonimmigrant, despite the inadmissibility. Conceptually, an approved waiver does not cure the ground of inadmissibility; it merely waives it. It exists; it continues to exist; it will always exist.

If granted, the waiver is endorsed on the nonimmigrant visa itself; typically, the waiver is valid for the same period as the visa on which it is endorsed. When the visa expires, so does the waiver, and a new visa and waiver are needed. (N.B., endorsement of waivers into visas does not apply to Canadians, who are visa exempt under US law -- except E and K visaholders. This does NOT mean that Canadians do not need to qualify as Hs or Ls or TNs. It simply means that there is no visa placed in their passports.)

Typically, Department of State consular officers make the initial assessment on a foreigner’s application before forwarding the application to the Department Of Homeland Security for a final decision. Both the Department of Homeland Security and Department of State use similar criteria to determine whether a waiver should be granted: (I) the risk of harm to society if the applicant is admitted, (II) the seriousness of the applicant’s criminal law or immigration law violation, (III) the nature of the applicant’s reason for seeking entry, and (IV) positive or negative effect, if any, of the planned travel on US public interests.

Application. The alien first makes an appointment with the Consulate to obtain a nonimmigrant visa. At the interview, if the consular officer determines that the alien is inadmissible on one of the aforementioned grounds, the application for a visa will be denied. The alien should then be informed that a waiver is possible.

Although procedures vary from consulate to consulate, the alien usually makes an appointment with the visa coordination unit to speak with an officer designated to evaluate these complex cases. Remember: this consular officer is with the US Department of State. After review of relevant documents and an intrusively and uncomfortably thorough interview -- for which your immigration counsel (if s/he is worth his/her salt) should have prepared you to within a inch of your life -- the officer will make a recommendation for approval or denial of the waiver. The recommendation is then forwarded to the Department of Homeland Security for final review. Final approval can take 2-3 months. Please note: the recommendation of the consular officer is not binding on the Department of Homeland Security.

“What are My Chances?” We immigration attorneys hear this question all the time, and I confess that it gets old very quickly. In all candor, we are neither turf accountants nor successors to Jimmy the Greek. I wish I could even say, “a meritorious case is likely to be approved, and a weak case is likely to be denied.” However, it is rarely so cut and dried. I have presided over the maddening denial of some of the former, and been surprised by the approval of some of the latter.

During fiscal year 2007, immigration statistics indicate that approximately 65% of applicants worldwide who have committed CIMT overcame the ineligibility. About 66% of controlled substance violators overcame the ineligibility. However, less than 10% of applicants with a finding of unlawful presence were granted visas. Needless to say, getting a waiver of inadmissibility granted is no walk in the park, and I strongly urge anyone seeking a waiver to obtain competent, experienced immigration law counsel.

Best of luck.

--J Craig Fong
Los Angeles, CA

nettlebed

Mods: definitely worth stickifying this...

DeanUK2US

Seconded!

Thanks for the great read, JCraigFong!

nettlebed

Although I challenge this point extremely strongly indeed.

JCraigFong

What?! These are not people you'd care to emulate? I'm shocked!

meauxna

I just heard my first Amy Winehouse song the other day and now I know what all the fuss is about.
The girl's a mess, but my god, what a voice.

Thread stuck; please let me know if it should NOT be copied into the wiki.

Folinskyinla

Hi all:

I just personally spoke with J about this excellent article.

My line on "chances" is: "I'm a lawyer, not a bookie. I can give you only a rough estimate but can definitely say that: if you do not apply at all, your chances are zero."

Also, it pays to remember that often in immigration we have to deal not only with the law, but with what an Immigration official thinks the law is. And sometimes the false premise underlying official belief hardens into almost a religious article of faith on the part of the government -- a mere mention of the actual law will result in a snort that the lawyer is making a "frivolous" argument.

Quite some years ago, I was involved in the immigration of a full time choir director in a large church affiliated with what the former INS apparently considered an obscure religious sect: the Presbyterian Church. After a huge fight, we finally convinced the INS that the Presbyterian Church was a bona fide religious organization and that music was a bona fide religious function. Petition was revoked. We refiled and succeeded in getting it approved again. Revoked again. Client chose to no longer retain us. We didn't blame them -- the only parent of a failed application seems to be the lawyer. We did not see any inkling of the case for ten years! Two weeks ago, the 9th Circuit Court of Appeals published a case for the same clients -- the appellate decision reversed a district court decision upholding the INS decisions. However, in very strong language, the Court said that CIS [as successors to the former INS] was very mistaken.

Moral of the prior paragraph -- I lost an eminently approvible case -- and ten years later -- a court ruled in the strongest possible language that I was correct in the first place.

Bob

Just one question...what happens to the Dutch etc?

JCraigFong

Ha-ha! SURELY you didn't think -- clever lawyer that I am -- that I didn't allow for this?!

Note that the post says, in pertinent part, "[an alien] who violates any law or regulation of a state, the United States, or a foreign country relating to a controlled substance."

Although you may have been smoking hash to your little heart's content in a Dutch "coffee shop," if you have not violated that foreign country's law about a controlled substance, you're OK. You might have been in violation IF the smoking were done in a state of the USA, but that is NOT where you did it. What you were smoking -- and HOW you were smoking it --do not violate controlled substance laws in the country where the activity took place. That hash is a controlled substance in the USA is not in dispute. That smoking it in the USA would be a violation of the law is not in dispute. What you did was lawful where you did it.

In contrast, last time I checked -- and it has been a while -- Melatonin is NOT LEGAL in Canada. If RCMP caught you selling a bottle which you bought legally in a US pharmacy, you could run afoul of Canada's controlled substances law. The loophole here would be that the controlled substance in question would not be on OUR list of substances.

Clever, huh?

Bob

They are a cheeky bunch of buggers aren't they...picking and choosing what suits

Tracym

So out of curiousity then - you're clear from a legal standpoint if you're just smoking in Holland.

But what if you're applying for a K-1 or immigrant visa - might you have a problem at the medical? i.e. more than experimental use... Could you then be termed a drug user or addict and thus Class A and inadmissible?

JCraigFong

Ah, well, here we get into inadmissibility NOT for CIMT, NOT for controlled substances, NOT for unlawful presence, but rather for a health-related ground.

At the medical examination for LPR status (adjustment or consular process) or K-1 visa, the Designated Civil Surgeon generally asks questions about drug use. Yes, Tracy, habitual use of controlled substances could trigger inadmissibility on health-related grounds.

However, that's another discussion altogether.

--J Craig Fong
Los Angeles, CA

Tracym

Thanks

I could somehow just picture some poor person innocently confessing to a bunch of (legal) use of marijuana in Amsterdam - having no problem from a criminal standpoint - and then getting refused as a drug abuser/addict from the medical.

JCraigFong

Very astute, Tracy. That is EXACTLY how it happens!

--J

Tracym

Thanks