11/14/2011 07:33 am ET Updated Jan 14, 2012

Return To The U.S. After Immigration Violations

A repeated theme and concern of immigration violators is whether they may now or at any time in the future return to the U.S. in lawful status. Like many legal questions, the answer is, "It depends."

The solution lies in the status in which a person seeks to return (as a nonimmigrant or immigrant) and the nature or length of prior violation(s). The rules are different for those seeking to return as visitors or as legal residents.

Returning as a nonimmigrant: To qualify for a tourist (B-2) and most temporary visas, you must demonstrate that you are not an intending immigrant. This is because entry as an immigrant is subject to annual quotas and is a long process that requires many steps to establish eligibility, lasting months or years. To circumvent those requirements, you must demonstrate nonimmigrant intent. In other words, that you will be in the U.S. only temporarily and will return to your home country at the completion of your stay. Because section 214(b) of the Immigration and Nationality Act (INA) presumes that every visa applicant is an intending immigrant, the burden to prove otherwise is on you.

How do your prove your intent? The first test is your prior visa history. The visa application (form DS 160) to be filed with the U.S. Consulate abroad inquires about your current and past addresses, employment history, relative(s) in the U.S., convictions or commissions of crimes, and membership in or association with prohibited groups such as terrorists, persecutors, and communists. If that record establishes that you have not previously been in the U.S., or if you were, you departed without any immigration or other violations of law, you are ahead of the game. The second inquiry is whether your U.S. relative(s) or a U.S. employer has filed a visa petition on your behalf seeking to qualify you for resident status. If either has, it will be presumed that you are unlikely to depart the U.S., but will remain there until the immigration process is successfully completed. Third, the consular officer will examine your ties to your home country. The more you have, the less likely your application will be refused. Examples of ties are spouse and children that you leave behind, your age, ownership of a business, a long-standing and well paying job, a savings account, ownership of a home or other real property.

Negative factors that weigh against visitor status include being single, young, or older with close family ties in the U.S. For example: a single person in his/her twenties may be viewed as going to the U.S. for the purpose of finding employment or a spouse. A grandmother type whose son or daughter in the U.S. has young children or a new baby may be suspected of desiring to stay as a caretaker for the grandchildren. This is especially the case if she is widowed or otherwise single.

The above guidelines apply to most nonimmigrant visas, except the H-1B, L, and O. These are employment-based visas whose purpose is temporary employment in the U.S., with a U.S. employer having filed and received approval on behalf of the foreign national. Dual intent, immigrant and non-immigrant, in these situations is immaterial. However, prior removal, record of a crime, or membership in groups that threaten U.S. security can still result in visa refusal.

Prior immigration violations: Various sections of law and regulations assure that almost any prior immigration violation will result in an adverse determination of "inadmissibility" of most visa applications. A frequent but severe action is misstatement or concealment of facts on a current or prior visa application. Examples include: (1) a prior visa refusal, (2)failure to disclose an immigration court hearing, conviction of a crime, prior removal/ deportation, no matter how old, (3) not listing relatives in the U.S., (4) having worked while on a tourist visa, (5) overstay of a visa even if for just one day, (5) entering the U.S. without inspection (illegally), and (6) false claim of U.S. citizenship.

Can a prior adverse history be forgiven? The most common visa refusal is based on "immigrant intent" pursuant to Sec. 214(b). This can sometimes be cured by presenting additional evidence or reapplying for a visa after a passage of time when personal circumstances have changed. A waiver of inadmissibility ( like a pardon) is available for the work related visas of H-1B, L and O, based on a showing that issuing the visa is in the "national interest". National interest is not defined in the law and its determination is entirely within the discretion of the consular officer who recommend a grant or denial of the waiver. The decision is not subject to court review, but neither is a another waiver application prohibited.

It should be clear that a well- documented presentation of a visa application is instrumental to its success. At the same time, it is unlikely that a person who has previously violated the terms of his nonimmigrant visa would again be trusted as to his temporary intent, even after passage of 10 years of inadmissibility. Instead, it is almost a certainty that he would be denied a B-2 visa based on 214(b)-- immigrant intent. To avoid pitfalls and refusals, it is best to consult an experienced immigration attorney before a visa denial occurs. Once refused, overturning the decision is not a simple matter.

Content concerning legal matters is for informational purposes only, and should not be relied upon in making legal decisions or assessing your legal risks. Always consult a licensed attorney in the appropriate jurisdiction before taking any course of action that may affect your legal rights.