Waiver of Inadmissibility

Unfortunately, past mistakes—even those made in one’s youth—can have lasting consequences on a person’s ability to enter the United States. Certain criminal convictions, or even seemingly minor incidents such as a police caution in countries like the United Kingdom, may be viewed far more seriously under U.S. immigration law. What might appear trivial or have resulted in minimal penalties abroad could still render an individual inadmissible and permanently barred from entering the United States or obtaining a visa.

Unless a statutory exception applies, an applicant must obtain an approved Waiver of Inadmissibility before being permitted to travel to or immigrate to the United States. These waivers are discretionary, and approval depends, in part, on the strength of the applicant’s case, the nature of the inadmissibility, and the purpose of the travel.

Common Grounds of Inadmissibility

The following represent some of the most common grounds of inadmissibility encountered by applicants.

Crimes Involving Moral Turpitude (CIMTs)

A crime involving moral turpitude refers to conduct that is inherently base, vile, or contrary to accepted moral standards. U.S. immigration law classifies many offenses involving theft, fraud, or intentional harm as CIMTs because they reflect moral depravity or dishonesty. Importantly, even seemingly minor convictions—such as shoplifting or a small-scale fraud offense—can result in a finding of inadmissibility to the United States.

Whether an offense constitutes a CIMT depends on the statutory elements of the crime, not the facts of the individual case. Crimes that require intent to steal, defraud, or inflict harm typically meet the CIMT definition. By contrast, offenses involving negligence or regulatory violations without intent are generally not considered CIMTs.

Certain exceptions may apply. For example, the “petty offense exception” can protect some applicants from inadmissibility if the applicant has only one conviction for a CIMT, the maximum penalty possible did not exceed one year imprisonment, and the actual sentence imposed was six months or less.

At Barella Global, many clients, such as professionals with minor offenses from years ago, have successfully overcome CIMT inadmissibility through carefully prepared waiver applications demonstrating rehabilitation, time elapsed, and favorable equities.

Consider the following example:

Arjun, an Indian citizen, visits his cousins in London during the summer holiday. One afternoon, he realizes he forgot his wallet while shopping for a sweater. Frustrated that it’s the last one available in his size, he decides to wear it out of the store without paying. He is caught by security and later arrested and convicted for shoplifting. He now wishes to visit other family in the United States but is concerned how his conviction will impact his ability to travel. Arjun’s concern is well-founded; his shoplifting conviction renders him inadmissible under U.S. immigration law for committing a CIMT.

Controlled Substance Violations

Drug-related grounds of inadmissibility are among the most restrictive in U.S. law. A conviction or even a legally valid admission to using or possessing a controlled substance — including cannabis — can result in permanent inadmissibility.

This applies even in jurisdictions such as the UK, Canada, and parts of Europe, where cannabis is legal (medical and/or recreational) or decriminalized. U.S. immigration law applies federal standards, meaning any drug-related offense or valid admission can trigger inadmissibility.

Temporary 212(d)(3) waivers are possible for nonimmigrant travel but are not available for immigrant visas in most controlled substance cases, except for a single offense involving 30 grams or less of marijuana.

Consider the following example:

In 2013, Robert, a nineteen-year-old citizen of the United Kingdom, was at a pub one evening with friends. To blow off steam after their university exams, they had smoked some cannabis before heading out. After smelling marijuana, a doorman asked them to empty their pockets, where a small joint was found on Robert. Police were called, and Robert received a police caution — not a criminal conviction under U.K. law. He thought little of it until 2025, when his employer began transferring him to their U.S. office under the L-1A visa. Although his caution was minor in Britain, because accepting a caution requires admitting the offense in lieu of prosecution, it is treated as a conviction for U.S. immigration purposes. Even if such a record is “spent,” “stepped down,” or removed under U.K. law, it must be disclosed to U.S. immigration authorities. As a result, Robert is inadmissible to travel or work in the United States without first receiving a Waiver of Inadmissibility.

Misrepresentation or Fraud

Misrepresentation and fraud are treated as serious grounds of inadmissibility under U.S. immigration law. An applicant is inadmissible if they have knowingly and willfully misrepresented a material fact or committed fraud to obtain a U.S. visa, immigration benefit, or entry into the United States.

The term “immigration benefit” is interpreted broadly and includes, among other things, the issuance of a visa, admission to the United States, the extension or change of nonimmigrant status, adjustment of status to lawful permanent residency, the granting of voluntary departure, asylum, or parole, and even applications for travel under the Visa Waiver Program (VWP) through ESTA.

Consider the following example:

Emina, originally from Albania but now an Italian citizen, had twice been denied a U.S. tourist visa while using her Albanian passport. Seven years later, after becoming an Italian citizen and changing her last name due to marriage, Emina plans to travel to the U.S. for a temporary work assignment. She starts filling out the online visa application form. Even though one of the questions asks her to disclose any previous U.S. visa denials, Emina assumes U.S. immigration officials won’t connect her past rejections to her current application since she’s now using an Italian passport with a different surname. However, when her fingerprints are taken during the visa interview, the system flags her prior refusals. The consular officer then denies her current application, declaring her inadmissible for misrepresentation.

Immigration Violations

Inadmissibility based on immigration violations generally arises from serious breaches of U.S. immigration law. These violations can include overstaying a period of authorized stay (i.e. unlawful presence) in the United States, entering without inspection, or making a false claim to U.S. citizenship.

Applicants who accrued more than 180 days of unlawful presence and departed the United States face a three-year bar, while those who accrued one year or more face a ten-year bar.

A false claim to U.S. citizenship is among the most severe violations under the law. It occurs when an individual falsely represents themselves as a U.S. citizen—whether verbally, in writing, or on a government form.

Consider the following example:

Pierre, a French national, entered the United States under the Visa Waiver Program (VWP), which allows for visa-free travel for up to 90 days under ESTA authorization. However, Pierre remained in the country for more than a year after the expiration of his authorized stay before returning to France. As a result of this overstay, he became inadmissible to the United States for a period of ten years from the date of his departure.

Prostitution-Related Inadmissibility

A foreign national who has engaged in prostitution within the past ten years is inadmissible under U.S. immigration law. U.S. immigration authorities define prostitution as engaging in promiscuous sexual intercourse for money or other material benefit.

This inadmissibility ground can apply even if the applicant has not been criminally convicted. In many cases, individuals may not realize that their past conduct could be interpreted as prostitution under U.S. immigration law. For example, escorting that involves or implies sexual conduct can fall within this category.

During secondary inspection at a port of entry, officers may review a person’s phone or other electronic devices if they suspect immigration violations. In such circumstances, messages, photos, or communications on escorting platforms, social media, or private apps suggesting involvement in commercial sexual activity can be used as evidence of inadmissibility.

Medical Inadmissibility

Medical inadmissibility applies to applicants found to have certain communicable diseases of public health significance, physical or mental disorders associated with harmful behavior, or a history of drug abuse or addiction.

A medical finding does not always lead to permanent ineligibility. In many cases, individuals can regain eligibility through treatment, documentation of recovery, or an approved medical waiver.

Applicants with a history of mental health conditions or past substance use may be required to undergo a panel physician evaluation at the U.S. embassy’s designated medical facility. The physician’s report is an important piece of evidence in determining admissibility.

Consider the following example:

Bertrand, a Belgian citizen, was convicted of Driving While Intoxicated (DWI) two years ago. Recently offered a job in New York, he begins preparing for his nonimmigrant visa interview with optimism after reading online that a DWI is generally not classified as a CIMT. Confident that his conviction won’t bar him from entering the United States, Bertrand completes his DS-160 form and accurately discloses his DWI as required under U.S. immigration law.

At his interview, however, the Consular Officer refuses his application under Section 221(g), placing it in Administrative Processing pending a medical evaluation. Following an in-depth examination by an Embassy-approved physician, Bertrand is found to have a substance abuse condition. Based on this finding, the Consular Officer determines that Bertrand is medically inadmissible to the United States. Despite his honest disclosure and lack of further criminal activity, Bertrand must now obtain a waiver of inadmissibility before he can be issued a visa.

Nonimmigrant Waivers: INA § 212(d)(3)

A nonimmigrant waiver is available to eligible applicants found inadmissible while applying for temporary visas such as B-1/B-2, F-1, E-2, L-1, or O-1. These waivers are adjudicated by the Admissibility Review Office (ARO) in the United States, following a recommendation from the consular officer.

Approval is discretionary and generally valid for a maximum period of 5 years, subject to the visa reciprocity schedule based on the applicant’s citizenship. Each case is evaluated under the Matter of Hranka factors:

1. The risk of harm to society if the applicant is admitted.
2. The seriousness of the applicant’s prior violation.
3. The nature of the applicant’s reason for seeking entry.

Immigrant Waivers: Form I-601

Applicants found inadmissible in connection with an immigrant visa (i.e. green card) application may require an I-601 waiver, depending on the nature of inadmissibility.

The I-601 waiver applies to immigrant visa applicants abroad or adjustment applicants in the United States, while the I-601A provisional waiver applies to certain applicants seeking to waive unlawful presence before departing the U.S. for consular processing.

These waivers often require demonstrating extreme hardship to a qualifying U.S. citizen or lawful permanent resident family member.

Processing Times and Validity Periods

Processing times for waiver applications vary significantly.

• Nonimmigrant waivers typically take 12 months, depending on the post and the ARO’s workload.
• I-601 immigrant waivers currently average over 30 months, though this may fluctuate based on USCIS service center backlogs.

Approved nonimmigrant waivers are valid for up to five years, while immigrant waivers are permanent unless the applicant later commits new violations.

Overcoming Inadmissibility

Successfully overcoming inadmissibility requires strong supporting evidence and a persuasive argument.

Barella Global’s U.S. waiver lawyer represents clients requiring both nonimmigrant waivers in connection with visa applications and permanent waivers of inadmissibility filed before USCIS. With offices in the United Kingdom and Europe, our firm has extensive experience representing clients before the U.S. embassies in London, Brussels, and other European posts.

Contact our office for a confidential consultation to discuss eligibility, waiver strategy, and expected processing timelines. Alternatively, you can book a consultation online through our booking platform.