UNCLASSIFIED (U)

9 FAM 301.4

Ineligibilities and Grounds for Refusals

(CT:VISA-877; 06-27-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 301.4-1 overview of grounds for refusal

(CT:VISA-877; 06-27-2019)

a. Basis for Refusal: The bases on which applicants must be denied visas are established by law, as part of the Immigration and Nationality Act (INA). INA 214(b) and 221(g) are common bases for refusal. Other grounds for refusal are found in INA 212 (INA 212(a), 212(e) and 212(f)). (Note: The Department generally uses the term ineligibilities to refer to these grounds for refusal; the Department of Homeland Security usually refers to these grounds as inadmissabilities.)

b. Summary of Grounds for Refusal (by Section of Law): See paragraph c for a list by category.

(1) INA 212(a)(1): Health and medical-related grounds (see 9 FAM 302.2);

(2) INA 212(a)(2): Criminal and related grounds (see 9 FAM 302.3 and 9 FAM 302.4);

(3) INA 212(a)(3): Security and related grounds (see 9 FAM 302.5, 9 FAM 302.6, and 9 FAM 302.7);

(4) INA 212(a)(4): Public charge (see 9 FAM 302.8);

(5) INA 212(a)(5): Labor certification, qualification (see 9 FAM 302.1-5);

(6) INA 212(a)(6): Illegal entrants, immigration violators, misrepresentation (see 9 FAM 302.9);

(7) INA 212(a)(7): Documentation requirements (see 9 FAM 302.1-3 and 9 FAM 302.1-4);

(8) INA 212(a)(8): Ineligible for citizenship (see 9 FAM 302.10);

(9) INA 212(a)(9): Previously removed, unlawfully present, unlawfully present after previous immigration violations (see 9 FAM 302.11);

(10) INA 212(a)(10): Other miscellaneous grounds (see 9 FAM 302.12);

(11) INA 212(e): Former exchange visitors (see 9 FAM 302.13-2);

(12) INA 212(f): Presidential Proclamations and sanctioned activity (see 9 FAM 302.14);

(13) INA 214(b): Presumption of immigrant status (see 9 FAM 302.1-2);

(14) INA 221(g): Application does not comply with INA (see 9 FAM 302.1-8); and

(15) INA 222(g): Nonimmigrant overstay, application not in country of nationality (see 9 FAM 302.1-9).

c. Summary of Grounds for Refusal (by Category): See paragraph b for a list by section of law.

(1) Inadequate Documentation or Qualification:

(a) Presumption of immigrant status see 9 FAM 302.1-2;

(b) IV documentary requirements see 9 FAM 302.1-3;

(c) NIV documentary requirements see 9 FAM 302.1-4;

(d) Labor certification requirements see 9 FAM 302.1-5;

(e) Unqualified physician see 9 FAM 302.1-6;

(f) Uncertified foreign health care worker see 9 FAM 302.1-7;

(g) Failure of application to comply with INA see 9 FAM 302.1-8; and

(h) Aliens subject to INA 222(g) see 9 FAM 302.1-9.

(2) Health and Medical Grounds:

(a) Communicable diseases see 9 FAM 302.2-5;

(b) Required vaccinations see 9 FAM 302.2-6;

(c) Physical or mental disorder or condition posing threat to property or safety see 9 FAM 302.2-7; and

(d) Drug abuse or addiction see 9 FAM 302.2-8.

(3) Criminal Grounds:

(a) Crimes involving moral turpitude see 9 FAM 302.3-2;

(b) Multiple criminal convictions see 9 FAM 302.3-4;

(c) Prostitution and criminalized vice see 9 FAM 302.3-6;

(d) Criminal activity where immunity asserted see 9 FAM 302.3-7;

(e) Human trafficking see 9 FAM 302.3-8; and

(f) Money laundering see 9 FAM 302.3-9.

(4) Grounds Related to Controlled Substances:

(a) Controlled substance violations see 9 FAM 302.4-2; and

(b) Controlled substance trafficking see 9 FAM 302.4-3.

(5) National Security Grounds:

(a) Intent to commit espionage or sabotage see 9 FAM 302.5-2;

(b) Intent to violate export control laws see 9 FAM 302.5-3;

(c) Intent to commit unlawful activity in the United States see 9 FAM 302.5-4;

(d) Intent to overthrow U.S. government see 9 FAM 302.5-5;

(e) Immigrant membership in a totalitarian party see 9 FAM 302.5-6.

(6) Terrorism-Related Grounds:

(a) Terrorist activities see 9 FAM 302.6-2;

(b) Association with terrorist organizations see 9 FAM 302.6-3;

(c) Section 306 of the Enhanced Border Security and Visa Reform Act of 2002 see 9 FAM 302.6-4.

(7) Human Rights Violations:

(a) Participation in particularly severe violations of religious freedom see 9 FAM 302.7-3.

(b) Participation in Nazi persecutions see 9 FAM 302.7-4;

(c) Participation in genocide - see 9 FAM 302.7-5;

(d) Participation in torture see 9 FAM 302.7-6;

(e) Participation in extrajudicial killing see 9 FAM 302.7-7;

(f) Participation in the use or recruitment of child soldiers see 9 FAM 302.7-8; and

(g) Participation in forced or coercive abortion or sterilization see 9 FAM 302.7-9;

(h) Participation in coercive organ or tissue transplantation see 9 FAM 302.7-10; and

(i) Presidential Proclamation 8697 - see 9 FAM 302.7-11.

(8) Public Charge: See 9 FAM 302.8.

(9) Illegal Entry, Misrepresentation, and Other Immigration Violations:

(a) Present without admission or parole see 9 FAM 302.9-2;

(b) Failure to attend removal proceedings see 9 FAM 302.9-3;

(c) Misrepresentation see 9 FAM 302.9-4;

(d) Falsely claiming citizenship see 9 FAM 302.9-5;

(e) Stowaways see 9 FAM 302.9-6;

(f) Smugglers see 9 FAM 302.9-7;

(g) Subject to civil penalty see 9 FAM 302.9-8; and

(h) Student visa abusers see 9 FAM 302.9-9.

(10) Citizenship restrictions:

(a) Ineligible for citizenship see 9 FAM 302.10-2;

(b) Departed, remained outside U.S. to avoid military service see 9 FAM 302.10-3.

(11) Previous removal and unlawful presence:

(a) Individuals previously removed see 9 FAM 302.11-2;

(b) Individuals unlawfully present see 9 FAM 302.11-3; and

(c) Individuals unlawfully present after previous immigration violation - see 9 FAM 302.11-4.

(12) Ineligibility Based on Other Activities:

(a) Practicing polygamists see 9 FAM 302.12-2;

(b) Guardian required to accompany helpless individual see 9 FAM 302.12-3;

(c) International child abduction see 9 FAM 302.12-4;

(d) Unlawful voters see 9 FAM 302.12-5;

(e) Former citizens who renounced citizenship to avoid taxation see 9 FAM 302.12-6.

(13) Miscellaneous Ineligibilities:

(a) Former foreign exchange visitors see 9 FAM 302.13-2;

(b) Unauthorized disclosure of U.S. confidential business information see 9 FAM 302.13-3;

(c) Frivolous asylum applications see 9 FAM 302.13-4; and

(d) Waivers of rights, privileges, exemptions, and immunities see 9 FAM 302.13-5.

(14) Sanctioned Activities:

(a) Adverse foreign policy consequences see 9 FAM 302.14-2;

(b) Suspension of entry by the president see 9 FAM 302.14-3;

(c) Individuals who have aided and abetted Colombian insurgent and paramilitary groups see 9 FAM 302.14-4;

(d) Individuals involved in confiscation of property of U.S. nationals see 9 FAM 302.14-5;

(e) Specially Designated Nationals see 9 FAM 302.14-6;

(f) Iran Threat Reduction and Syria Human Right Act see 9 FAM 302.14-7;

(g) Sergei Magnitsky Rule of Law Accountability Act of 2012 see 9 FAM 302.14-8;

(h) Participation in certain political killings see 9 FAM 302.14-9; and

(i) Presidential Proclamation 9645 - see 9 FAM 302.14-10.

9 FAM 301.4-2 Applicability of Ineligibilities to IV and NIV Cases

(CT:VISA-791; 05-16-2019)

a. Does This Ineligibility Apply to This Case? Particular ineligibilities may apply only to immigrants, only to nonimmigrants, or, more commonly, to both types of applicants. You must use care in determining which grounds of refusal apply in particular cases.

b. Nonimmigrants: NIV applicants are subject to INA 212(a) ineligibilities, except as noted below:

(1) Nonimmigrant are subject to INA 212(a)(1) health-related ineligibilities, with the exception of INA 212(a)(1)(A)(ii) related to vaccinations, which applies to immigrants only.

(2) Nonimmigrants are not subject to INA 212(a)(3)(D) related to immigrant membership in or affiliation with Communist or other totalitarian parties.

(3) Nonimmigrants are not subject to INA 212(a)(5), related to labor certifications for immigrants.

(4) Nonimmigrants are not subject to INA 212(a)(7)(A)(i), related to immigrant documentation requirements.

(5) Nonimmigrants are not subject to INA 212(a)(8)(A), related to immigrant ineligibility for citizenship, due to desertion, draft evasion or exemption from military service.

(6) Nonimmigrants are not subject to INA 212(a)(10)(A), related to immigrants who are practicing polygamists.

c. Immigrants: IV applicants are subject to INA 212(a) and other refusal provisions, except as noted below:

(1) Immigrants are not subject to INA 212(a)(7)(B)(i), related to nonimmigrant documentation requirements.

(2) Immigrants are not subject to INA 214(b), related to the presumption that applicants are immigrants.

(3) Immigrants are not subject to INA 222(g), related to place of application for nonimmigrants with previous overstays of their nonimmigrant visas.

9 FAM 301.4-3 WAIVING or overcoming refusals and INELIGIBILITIES

(CT:VISA-877; 06-27-2019)

Certain refusals based on a finding of ineligibility can be overcome or waived. For information on overcoming a refusal see 9 FAM 306.2. For information on waiving ineligibilities see 9 FAM 305.1 or the individual grounds of ineligibility in 9 FAM 302.1 through 9 FAM 302.14. The Ineligibilities or Grounds of Refusals Applicability and Waivers chart provides you with an overview of the grounds of ineligibility/refusal, whether it applies to IV or NIV applicants, whether a waiver may be available, and the FAM section where you can find additional information on the ground of ineligibility.

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