Previous Denial: Admissibility Issues

Many foreign nationals desire to travel to the United States, whether it’s a temporary visit for pleasure or to live here permanently and start a brand new life. Whatever the reason, getting into the United States often involves completing complex paperwork, followed by many months and (even years) of waiting.

• New York Immigration Lawyers: From Visas to Green Cards and Naturalization

So if the first attempt to travel to the United States is unsuccessful, it can be particularly discouraging. The foreign national may wonder if it’s worth applying for the desired immigration benefit a second time. Deciding to apply a second time will depend on a wide range of facts and circumstances. The experienced immigration attorneys from Saland Law can help explain if a second try is worth it and its chances of success.

As an overarching concept, the United States is open to foreign nationals and encourages them to visit and live here, as long as they comply with the law and do not harm the country during their stay. If an earlier Green Card, visa or other immigration benefit has been denied, it’s because the US government, for whatever reason, believes the foreign national may harm the United States or its inhabitants, whether it’s through terrorism, relying on government assistance or committing a crime.

Until the foreign national can show that they are no longer a threat or will not be a burden to the United States, they will almost certainly be denied entry into the United States when they reapply for an immigration benefit, such as a citizenship, lawful permanent residence or a visa.

Therefore, determining if someone can reapply to enter the United States and the chances of success depends primarily on the prior basis for the denial and any changes that have occurred to the foreign national since the denial.

A denial can occur in a variety of ways, such as:

• Denied visa application.
• Denied petition, such as Form I-485 or Form I-130.
• Order of removal (also known as deportation).
• Refused entry into the United States.

The reason for the denial can also vary widely, although common reasons include:

• Prior criminal record.
• Certain health issues.
• Association with criminal or terrorist organizations.
• Earlier immigration violations, such as illegal entry into the United States and marriage fraud.

Unless the facts or circumstances surrounding the first denial have changed, reapplying for the previously denied immigration benefit is unlikely to be successful.

Depending on the reason for the denial, it may result in an individual receiving a permanent or temporary time bar to becoming admissible.

For example, entering into a sham marriage for purposes of obtaining an immigration benefit can potentially permanently bar an individual from ever receiving a visa or Green Card. For those who have tried to enter the United States illegally or are removed, 5, 10 or even 20 year time bars are possible, depending on the circumstances.

Only after this time bar has passed will the foreign national be permitted to apply for an immigration benefit, such as a visitor visa. Even then, there’s no guarantee the visa will be granted, especially if the consular officer reviewing the visa application deems the applicant to still be a risk to overstay their visa or violate some other immigration law.

But in certain situations, a foreign national can try to reapply before his or her time bar has passed. To do this, they must complete Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

If the denial is for a more mundane reason, such as failing to show financial support for the duration of study when applying for an F-1 visa, then there should be no bar to reapplying. But another F-1 visa application won’t do any good unless the applicant can show his or her financial situation has changed since applying for the F-1 visa the first time.

It bears repeating that even if there is no legal prohibition on reapplying, unless the applicant can effectively prove his or her prior reason for inadmissibility no longer applies, it usually doesn’t make sense to reapply.

For situations where the original denial may have been in error, it usually makes more sense to file an appeal rather than accept the denial and reapply later.

If an applicant is deemed inadmissible, they may be eligible for a waiver. Waivers are not available for every basis for inadmissibility, with more serious criminal convictions and associations with criminal or terrorist organizations usually being inadmissible characteristics that are not waivable.

There are many reasons a waiver can be granted, including extreme hardship, humanitarian reasons and preserving family unity. These reasons are mostly discretionary, so it may be worth the cost of hiring an immigration attorney to help present the most persuasive and sympathetic case for obtaining a waiver.

Ideally, the request for a waiver will take place before there is ever a denial. Before applying for a visa, adjustment of status or another type of immigration benefit for the first time, the applicant should know if they may have a particular trait or characteristic that makes them potentially inadmissible. If so, they can anticipate the potential reason for denial and apply for a waiver ahead of time by completing Form I-601, Application for Waiver of Grounds of Inadmissibility. Getting the waiver ahead of time can save a lot of time, money and stress. However, it usually requires the hiring of an immigration attorney.

A denial may be difficult to overcome, but depending on the circumstances one that may be overcome. If you want to settle on a life outside of the United States it is certainly your decision to forego all that America has to offer you and your family. If, however, you want to pursue legal remedies with an experienced immigration attorney and to best put yourself in a position to overcome your denial, then do not waste another day. Seize your future now.

Call the New York immigration lawyers and former New York City prosecutors at (212) 312-7129 or contact us online today.