What Does “Inadmissible” Mean?

In this article, SelfLawyer discusses how to prove extreme hardship for a waiver, Form I-601 and prepare the evidence necessary to make an extreme hardship claim. 

Being declared “inadmissible” means that a U.S. immigration official found something in your record that prevents you from lawfully entering or remaining in the United States.

Under U.S. immigration law, the United States Citizenship and Immigration Services (USCIS) has the discretion to waive any inadmissibility bar (see below).

This waiver is only available if the non-citizen can prove that if they are not admitted into or allowed to stay in the U.S., “extreme hardship” will result for a qualifying family member. 

Proving “extreme hardship” to overcome inadmissibility is hard but not impossible.

What Makes You “Inadmissible” to the U.S.

Individuals who are “inadmissible” are not permitted by law to enter or remain in the United States.

There are a number of reasons you can be declared “inadmissible.” 

However, not all declarations of inadmissibility can be excused through “waiver.” 

Not all waivers can be proved through “extreme hardship.”

In the following tables you can find the more common grounds for an inadmissible finding, if this can be overcome with a waiver, and if extreme hardship can be used to support this waiver. 

Health-Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I am infected with a disease that is a threat to the general health of the publicYesNo
I have not received all necessary vaccinationsYesNo
I have a mental or behavioral disorder that may pose a threat to the property, safety, or welfare of others or myselfYesNo
I have a history of a medical or behavioral disorder that may pose a threat to the property, safety, or welfare of others or myself that is likely to reappearYesNo
I am or have a history of being a drug abuser or addictNoNo

 

Criminal and Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I have been convicted of a crime or convicted of attempting or con?spiring to commit a crime involving “moral turpitude” ¹YesYes
I have been convicted of a criminal offense defined as an “aggravated felony” by the U.S. Congress; therefore, I cannot demonstrate “Good Moral Character” ²Yes/No ³Yes
I have been convicted of a crime related to a controlled substance (excluding simple possession of less than 30-grams of marijuana for personal use)NoNo
I have been convicted of two or more offenses (involving moral turpitude or otherwise) for which the cumulative sentences equal five or more years of imprisonmentYesYes
I am an illicit trafficker in any controlled substance, or I am a knowing aider, abettor, conspirator, or colluder with others in illicit trafficker of a controlled substanceNoNo
I am the spouse, son, or daughter of an illicit trafficker in any controlled substance who has received financial or other benefits from illegal trafficking within the previous five yearsNoNo
I am coming to the United States solely, principally, or incidentally to engage in prostitution, or I have engaged in prostitution within the previous ten yearsYesYes
Within the previous ten years, I have directly or indirectly procured, attempted to procure, imported for the purpose of prostitution, or received any proceeds or benefits from prostitutionYesYes
I am coming to the United States for the purpose of engaging in any unlawful commercialized vice—prostitution or otherwiseYesYes
I have been involved in serious criminal activity but have received immunity from prosecution or, for whatever reason, had my criminal record expunged (cleared)YesYes
I am known to have engaged in or have been convicted of engaging in human trafficking offenses, or I have aided, abetted, conspired, or colluded with such a trafficker NoNo
I am a spouse, son, or daughter of a human trafficker who, within the previous five years, has obtained financial or other benefits that relate to a human trafficking offenseNoNo
I am known to engage in or have been convicted of engaging in laundering money or any other monetary instrumentsNoNo

What is “Moral Turpitude”?

Crimes involving “moral turpitude” include: 

  • involuntary manslaughter (in some cases)
  • rape
  • spousal abuse
  • child abuse
  • incest
  • kidnaping
  • robbery
  • aggravated assault
  • mayhem
  • animal fighting
  • theft
  • fraud
  • conspiracy to commit, attempt, or act as an accessory to a crime of moral turpitude

Check the USCIS website for a complete listing of “moral turpitude” offenses.

What are “Aggravated  Felonies”?

The U.S. Congress defines “aggravated felonies” to include:

  • rape
  • sexual abuse of a minor (which can include statutory rape)
  • trafficking in firearms or destructive devices
  • other offenses concerning firearms or explosive materials
  • racketeering
  • money laundering of more than $10,000
  • fraud or tax evasion involving more than $10,000
  • theft or violent crime with a sentence order of at least one year
  • perjury with a sentence of at least one year
  • kidnapping
  • child pornography
  • commercial bribery, counterfeiting, forgery, or trafficking in vehicles
  • failure to appear in court on a felony charge for which a sentence of two years in prison may be imposed
  • alien smuggling
  • obstruction of justice, perjury, or bribery of a witness if the term of imprisonment was at least one year

Check the USCIS website for a complete listing of “aggravated felony” offenses.

Who is Subject to a Special “No Waivers” Clause?

Immigration law specifically bars the following crimes from any type of inadmissibility waiver:

  • murder (all categories with an intent element)
  • torture (all types)
  • espionage (spying)
  • terrorism (against the U.S. or any other country) 
  • drug and drug trafficking offenses (except possession of 30-grams of marijuana for personal use)

 

Security Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I am known to have engaged in or been convicted of engaging in espionage (spying) or sabotage involving goods, technology, sensitive information, or the control or overthrow of the United States governmentNoNo
I am known to have engaged in, to have been convicted of, or am likely to engage in terrorism or terrorist activityNoNo

 

Public Charge Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I am likely to become a public charge (dependent upon the government for support) after arriving in the United States NoNo

 

Illegal Entrants and Immigration Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I entered the United States without being inspected, admitted, or paroledNoNo
I failed or refused to attend or remain in attendance of my inadmissibility or de?por?ta?tion proceeding without just causeNoNo
I fraudulently or willfully misrepresented myself to gain admission into the United States or to seek a benefit from the United StatesYesYes
I fraudulently or willfully misrepresented myself in claiming that I was a lawful citizen of the United StatesNoNo
I obtained and entered the United States on a student visa and have unlawfully violated the terms of that visaNoNo
I am an alien who, for whatever reason, is permanently ineligible to obtain United States citizenshipNoNo
I am, for whatever reason, under an order of removal from the United States NoNo
I was unlawfully present in the United States for a period of more than 180 days but less than one year, voluntarily departed prior to the start of a removal proceeding, and again seeks admission within three years of my departureYesYes
I was unlawfully present in the United States for a period of one year or more and seek admission within ten years of the date of my departure or removalYesYes
I was unlawfully present in the United States for an aggregate (combined total) period of more than one year, or have been ordered to be removed or deported, and have reentered or attempted to reenter the United States without being admitted, inspected, or paroledYesNo

 

Labor Related Grounds for Inadmissibility
Grounds That Make Me InadmissibleCan I Get a Waiver?Can I Assert Extreme Hardship?
I entered the United States for the purpose of performing skilled or unskilled labor; the Secretary of Labor has not certified that there are not sufficient workers who are able, willing, qualified, and available to perform my job and has not certified that my employment will not adversely affect the wages and working conditions of U.S. workersNoNo

 

Who is a Qualifying Family Member for “Extreme Hardship” Purposes?

For the purpose of inadmissibility waivers, you must prove that a “qualifying family member” will suffer extreme hardship due to your continued inadmissibility. 

Who constitutes a “qualifying family member” is based on why you were labeled Inadmissible. 

If you were labeled inadmissible due to misrepresentation during the immigration process or because you were unlawfully present, only your U.S. citizen or lawful permanent resident spouse or parent qualifies as a family member. 

If your inadmissibility determination is for any other reason that may be excused by waiver, your U.S. citizen or lawful permanent resident spouse, parent, son, or daughter qualifies as a family member. 

How Do You Prove Extreme Hardship For a Waiver, Form I-601?

U.S. immigration law does not define “extreme hardship.”

Rather, the USCIS considers “extreme hardship” on a case-by-case basis while considering any number of factors. 

No two cases are the same. What is required to prove extreme hardship in one case may not be required in your case. 

Moreover, USCIS must consider ALL relevant factors.

Thus, even if no one factor rises to the level of “extreme hardship” in your case, the effect of two or more factors together may be enough to establish extreme hardship. 

When attempting to establish “extreme hardship,” there are two important things you should keep in mind:

  1. Extreme hardship requires a degree of hardship beyond that typically associated with family separation. 
  1. The USCIS has total discretion as to whether extreme hardship would result under the factors of your case, thus, there is no appeal of USCIS’s “extreme hardship” decision. 

To help you understand what constitutes “extreme hardship,” consider the following.

Extreme hardship was granted to an inadmissible mother of two young children. If forced to return to her home country, her U.S. citizen children would face extreme hardship because they do not know the language or culture, would be forced to abandon their education, and under the current political climate of the mother’s home country there is a real concern for the children’s safety. 

Extreme hardship was granted to a man who overstayed his visa. Since arriving in the U.S., he has been the sole financial support, including insurance, for his elderly parents who are both lawful permanent residents. If he were forced to return to his home country, his parents would lose their only financial support, including insurance, leaving them to become public charges. 

What Does USCIS Consider Extreme Hardship?

Factors USCIS has considered in finding “extreme hardship” include (but are not limited to) the following:

  • Your age, both at the time you entered the U.S. and at the time of your application for relief
  • The age and immigration status of your qualifying family member, their ability to speak the native language, and their likelihood of adjusting to life in the country of return
  • Your health and the health of your qualifying family member, and the availability of any required medical treatment in the country of return
  • Your ability to obtain employment in the country to which you will be returning
  • The amount of time you have spent in the U.S.
  • The number and legal status of all family members who are or will be residing in the U.S. and in the country of return
  • The financial impact of your departure on you and your qualifying family member
  • The impact on educational opportunities for you and your qualifying family member
  • The psychological impact on you and your qualifying family member
  • The current political and economic conditions in the country of return
  • What, if any, family and other ties you have in the country of return
  • Your contributions to and ties to a community in the U.S., including the degree of integration you’ve had to society
  • Your immigration history, including authorized residence in the U.S.
  • Where applicable, the availability of other avenues besides inadmissibility.

Are Some Factors More Important Than Others?

Yes, depending on the reason you were deemed inadmissible.

For example:

  • Citing a gang or terrorist threat against you or your qualifying family member will carry more weight than citing their difficulty adjusting to a new way of life.
  • The lack of treatment for your qualifying family member’s existing documented serious medical condition will carry more weight than the lack of educational opportunities. 

Can I Have More Than One Qualifying Family Member? 

In general, you need to show extreme hardship upon only one family member, but there is no rule against asserting extreme hardship upon two or more qualifying family members.

Under the aggregate factor rule, even if you can’t show extreme hardship against only one family member, if you can show hardship against two or more family members this may be considered extreme hardship.

How Does USCIS Decide Extreme Hardship?

The USCIS uses a discretionary process to decide if there is extreme hardship in any given case.

In making this determination, the USCIS officer will decide if your alleged hardship, taken as true, is “extreme”.

This question is answered by looking at two situations:  

  1. Is there a reasonable possibility that the qualifying family member will be relocating with you, and, if so, is it likely that this relocation would result in extreme hardship?
  2. Is there a reasonable possibility that the qualifying family member will remain in the U.S. and, if so, is it likely that this separation would result in extreme hardship?  

These options are not mutually exclusive. For example, you might satisfy the extreme hardship requirement by showing that both situations are possible and that there is a reasonable possibility that each would be likely to result in extreme hardship for your family member.

It is important to keep in mind, however, that extreme hardship is not the only test in deciding whether to waive inadmissibility. The USCIS officer has considerable discretion in deciding whether all the circumstances taken together (not just extreme hardship) merit the granting of a waiver.

Neither immigration law nor the USCIS policy manual identifies a specific type or amount of evidence necessary to establish eligibility for a waiver. The evidence you present, however, should support all eligibility requirements for your specific claim. It should be specific, substantiate, and come from a credible source. If the evidence required to establish your claim is not available, you should provide a reasonable explanation for its absence.

What Type of Evidence Proves Extreme Hardship?

The evidence necessary to prove your extreme hardship claim is dependent on the reason you were found inadmissible. 

In general, your evidence will include (but is not limited to):

  • Expert opinions (medical, psychological, social science, statistical)
  • Medical or mental health tests and evaluations by licensed medical and psychological professionals
  • Official documents, such as birth certificates, marriage certificates, adoption papers, or other court documents
  • Photographs
  • Evidence of employment or business ties, such as payroll records or tax statements
  • Bank records and other financial records;
  • Membership records in community organizations, confirmation of volunteer activities, or cultural affiliations
  • Newspaper articles and reports
  • Country reports from official and private organizations
  • Personal oral testimony
  • Affidavits and statements that are signed “under penalty of perjury”
  • Letters from the applicant or any other person.