By Steven D. Heller
So, you’re ready to invest in the American Dream. You’ve got the money and a squeaky clean transfer of funds from your personal accounts to your chosen U.S. investment. You are the poster child for EB-5 investors and your I-526 sailed through processing. You have just one problem: when you were 20 you were convicted of cocaine possession. Under current U.S. immigration law, you can never get an immigrant visa and that means your EB-5 American Dream has become a million-dollar nightmare.
It’s tempting to think the EB-5 program is all about the money, but there’s more to it. Like any visa application, EB-5 applicants must also satisfy basic admissibility requirements.
There are various grounds for visa refusal and possible ways to avoid and contest inadmissibility findings and whether waivers may be available. Sometimes, waivers may not be available to immigrants, but may be available to non-immigrants.
HOUSTON, WE HAVE A PROBLEM
Section 212(a) of the Immigration and Nationality Act lists ten categories of excludable aliens, individuals who are inadmissible to the United States due to past transgressions or present danger. Broadly, the categories relate to public health risks, security risks and past offenses. The categories are health; criminal; security threats, such as terrorism, members of the totalitarian party or involvement with the Nazi; public charge, like indigence; labor certification and credentials, such as where credential are a prerequisite for the visa classification; illegal entrants and immigration violators; documentation problems; ineligible for citizenship; aliens previously removed; and miscellaneous reasons, including practicing polygamists, child abductors, unlawful voters and former U.S. citizens who renounced citizenship to avoid taxation.
Among the ten categories, the ones that seem more likely to impact EB-5 applicants would be those relating to health, criminal records and immigration status violations and prior removals. These inadmissibilities may be temporary, time-limited or permanent. For example, health-related inadmissibilities, relating to a medical condition of public health concern, will typically be resolved by a finding that the condition no longer presents a problem. Similarly, provisions relating to “aliens previously removed,” which includes those who have overstayed an authorized stay in the US, are mostly limited to periods of 3, 5, 10 or 20 years, after which the excludability vanishes. The most serious bases of inadmissibility are those that don’t go away, including all of the security and criminal grounds, as well as prior misrepresentation to US immigration officials.
Most inadmissibilities can be waived for non-immigrants, but waivers for immigrants are limited--and, remember, EB-5 is an immigrant visa.
Let’s take a look at the big three.
All immigrants must submit to a full medical examination by a physician under contract with the U.S. government. For overseas visa processing, it’s handled by a designated panel physician and for adjustment of status within the US, it’s done by a designated civil surgeon. Under guidance from the Centers for Disease Control (CDC) the designated physician must assess a visa applicant’s physical and mental health. All visa applicants must document that they have been vaccinated against certain diseases, including mumps, measles and polio among others. Failure to provide proof of vaccination will result in visa denial. Communicable diseases of public health significance, such as tuberculosis, leprosy, gonorrhea and syphilis among others will also render an individual inadmissible to the United States as a Class A medical condition. Similarly, a finding that a visa applicant currently suffers from a physical or mental disorder that may present a risk of harm to people or property will also be subject to a Class A medical finding. This is particularly poignant in cases relating to recent drunk driving offences or offenses where drugs or alcohol affected judgment, like a bar fight or property damage.
Certain criminal offences can render an individual inadmissible for life. These include controlled substance violations, crimes involving moral turpitude, multiple convictions with an aggregate sentence of confinement five years or more, prostitution, alien smuggling and money laundering. (1)
The concept of “crimes involving moral turpitude” (CIMTs) is confusing, even for legal professionals. Fundamentally, jurisprudence suggests a certain level of baseness, vileness or depravity associated with the crime - a purposeful, deliberate attempt to harm or defraud. Rape is a CIMT as is petty larceny and mail fraud. A guiding principle is whether an essential element of the crime requires knowledge of wrongfulness - intent. When a crime requires specific intent to commit an act, it will likely be deemed a CIMT.
Significantly, inadmissibility for CIMTs and controlled substance offences can be based not just on a conviction, but also on an official admission of guilt. Such admissions must be under oath, be based on the statute and personal statements to establish the CIMT, be made with an understanding of the elements of the crime, include all the factual elements that constitute the crime and be explicit, unequivocal and unqualified. (2)
Inadmissibility based on such admissions used to be quite rare, but in the past few years we have seen a significant increase in such findings, including a 2014 change in the State Department’s policy relating to police cautions in the United Kingdom, which recognizes cautions administered since July 2008 as constituting official admissions of guilt. (3)
In this last category, I combine provisions from Immigration and Naturalization Act -- INA§212(a)(6) -- which are about illegal entrants and immigration violators, and §212(a)(9), which is about overstays and aliens previously removed.
Misrepresentation is serious. If you ever misrepresented yourself to gain entry to or a visa for the United States, you are inadmissible under INA§212(a)(6)(C)(i). Permanently .The misrepresentation must be wilful and material, meaning you knew you were misrepresenting yourself and the falsehood directly affected your admissibility. One example would be to fail to disclose a conviction for a controlled substance violation. Likewise, a historic false claim to U.S. citizenship will render an individual permanently ineligible for legal permanent resident status. (4)
Those who have stayed beyond the time authorized at entry or who have been removed from the U.S. are subject to time-limited bar on re-entry to the U.S., anywhere from 3 to 20 years, depending on the nature of the violation. Overstays of six months to one year will incur a bar to re-entry of three years from the date of departure. (5)
Overstays of a year or more will trigger a 10-year bar. (6) If you were actually removed from the United States pursuant to an immigration court order, you would be subject to 5, 10 or 20-year bar to re-entry.
TIME IS ON YOUR SIDE WHILE COPING WITH INADMISSIBILITY
Medical inadmissibilities can be overcome. Vaccination-related inadmissibility can be waived for individuals who have had the vaccination, but lack the documentation, where the vaccination is not medically appropriate or where a person objects to all vaccinations on religious or moral grounds. (7) Class A Medical inadmissibilities can be waived, but generally only if the visa applicant is the spouse or child of a US citizen or lawful permanent resident. (8) Given that waiver adjudication times exceed 6 months, those with Class A inadmissibilities may find it easier to wait until 12 months have passed in the hope that a reexamination will find the individual in full remission, which would downgrade the Class A to a Class B and the inadmissibility would be removed. (9)
To overcome a criminal inadmissibility, an immigrant visa applicant has two limited options: contest the finding or seek a waiver.
No harm, no foul
Not all criminal offences will result in an inadmissibility finding. Offences that generally avoid inadmissibility include the following: Traffic offences, intoxicated driving, offences where a specific intent is not an essential element, political offenses and juvenile delinquency.
In some cases, post-conviction relief may eliminate criminal inadmissibility, such as a full and unconditional pardon issued by the U.S. President. A conviction overturned on appeal is not a conviction for immigration purposes, nor is a judgment vacated by the original court.
Section 212(h) of the INA provides for discretionary waiver of inadmissibility based on criminal conduct, but only for individuals convicted of CIMTs -- except murder and torture and attempts to conspiracy to commit murder or torture or for someone who is convicted of a single offence of simple possession of 30 grams or less of marijuana. That’s it. Any other drug-related offence, like that old cocaine possession conviction, cannot be waived for an immigrant visa.
To be eligible for a waiver, the applicant must establish that the crime occurred more than 15 years before application for a visa and admission would not be contrary to the national welfare, safety or security of the US, and that he or she has been rehabilitated. The applicant would also need to show that the spouse, parent, son or daughter is a US citizen or lawful permanent resident who would suffer extreme hardship if the individual were not allowed to live in the US. The extreme hardship standard is strict, and requires more than “common results of the bar, such as separation or financial problems.” (10)
Avoiding inadmissibility based on immigration violations can be difficult. Of course, for time-limited bars to re-entry, satisfaction of the period of banishment will extinguish further inadmissibility, but for other grounds, or prior to the end date, the options are limited.
Section 212(i) of the INA provides limited waiver eligibility based on showing extreme hardship to a U.S. spouse or parent, not including children. The waiver is only available for (6)(C)(i) misrepresentation; not for false claims to U.S. citizenship. (11)
Like the (6)(C)(i) misrepresentation, the 3 and 10-year overstay bars can only be waived by showing extreme hardship to a US spouse or parent. (12)
The bars to re-entry following removal cannot be waived, but they can be excused if, prior to departing for the U.S., the individual obtains permission to reapply for admission. This is a purely discretionary determination.
If an immigrant waiver is not available, look at non-immigrant visa options
When inadmissibilities render an immigrant visa unobtainable, a non-immigrant visa may be a viable option. Inadmissibilities apply to both immigrant and nonimmigrant visas, but waivers are more widely available for nonimmigrants, and for example any controlled substance offence can be waived for a non-immigrant visa, and the legal standard is lower.
GETTING TO KNOW THE E AND L VISA OPTIONS
Would-be EB-5 investors may find the E-2 Treaty Investor visa a reasonable substitute. The E-2, a non-immigrant investor visa, is based on bilateral trade agreements between the U.S. and other countries. Not all countries have E-2 agreements with the U.S., however, so it may not be available to all. See the U.S. Department of State Foreign Affairs Manual -- 9 FAM 402.9-10 -- for a current list of E-2 treaty countries. Like the EB-5, the E-2 is about investment in a US business. The standard term for an E-2 visa is five years. It can be renewed indefinitely. (13)
Non-immigrant business visas are also available to owners and critical employees of non-U.S. companies engaged in substantial international trade when the majority of their international trade is with the U.S. This E-1 visa, like the E-2 above, is limited to nationals of countries that have a qualifying trade agreement with the United States.
Another option is the L-1 intracompany transfer visa. Individuals who have been employed with a non-U.S. company for at least one year out of the last three may be eligible for an L-1 visa to enable a temporary transfer to an affiliated company in the U.S. L-1 visas are limited to three years, renewable to a maximum of seven years. (14)
TIME IS ALSO ON YOUR SIDE WITH NON-IMMIGRANT VISA WAIVERS
Pursuant to INA 212(d)(3), most inadmissibilities can be waived in the exercise of discretion for non-immigrant visas. The only inadmissibilities that cannot be waived are those relating to security. The standard for non-immigrant waivers is not statutory but based on case law (Matter of Hranka15), which has established a three-part test, including risk of harm to society if the applicant is admitted, seriousness of the applicant’s prior immigration or criminal law violations, and reasons for wishing to enter the U.S.
Procedurally, requests for non-immigrant waivers are initiated on recommendation by the consular officer at the time of visa interview. The Foreign Affairs Manual requires assessment of the recency and seriousness of the underlying offence, reasons for proposed travel and balancing the positive and negative impact of allowing travel. (16)
Everyone makes mistakes. Some can come back to haunt you. If you have erred in the past, it could affect admissibility and temporarily or permanently prevent you from obtaining an EB-5 visa, no matter how much money you spend. For most people, however, there are options.
2. See 9 FAM 302.3-2(B)(4)(e). But n.b. an admission for a crime for which the individual was tried and acquitted cannot be the basis for an inadmissibility determination.
3.See Practice Pointer: Dealing with U.K. Cautions at the U.S. Embassy, AILA InfoNet Doc 14021952 (16 December 2014).
9. 9 FAM 302.2
10. Matter of Pilch, 21 I&N Dec. 627 (BIA 1996)
13. See generally 9 FAM 402.9-4, et seq.
15. 16 I&N Dec. 491(BIA 1978)
16. 9 FAM 305.4-3(C)