" To overcome a criminal inadmissibility , an immigrant visa applicant has two limited options : contest the finding or seek a waiver ."
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 .
HEALTH-RELATED INADMISSIBILITIES
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 .
" To overcome a criminal inadmissibility , an immigrant visa applicant has two limited options : contest the finding or seek a waiver ."
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 .
CRIMINAL INADMISSIBILITIES
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
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