" Medical inadmissibilities can be overcome ."
excused if , prior to departing for the U . S ., the individual obtains permission to reapply for admission . This is a purely discretionary determination .
If an Immigrant Waiver is Not Available , Look at Non-Immigrant Visa Options When inadmissibilities render an immigrant visa unobtainable , a nonimmigrant visa may be a viable option . Inadmissibilities apply to both immigrant and nonimmigrant visas , but waivers are more widely available for nonimmigrants , and for example any controlled substance offence can be waived for a nonimmigrant visa , and the legal standard is lower .
" Medical inadmissibilities can be overcome ."
are those relating to security . The standard for nonimmigrant waivers is not statutory but based on case law ( Matter of Hranka 15 ), which has established a three-part test , including risk of harm to society if the applicant is admitted , seriousness of the applicant ’ s prior immigration or criminal law violations , and reasons for wishing to enter the U . S .
Procedurally , requests for non-immigrant waivers are initiated on recommendation by the consular officer at the time of visa interview . The Foreign Affairs Manual requires assessment of the recency and seriousness of the underlying offence , reasons for proposed travel and balancing the positive and negative impact of allowing travel . 16
GETTING TO KNOW THE E AND L VISA OPTIONS
Would-be EB-5 investors may find the E-2 Treaty Investor visa a reasonable substitute . The E-2 , a non-immigrant investor visa , is based on bilateral trade agreements between the U . S . and other countries .
Not all countries have E-2 agreements with the U . S ., however , so it may not be available to all . See the U . S . Department of State Foreign Affairs Manual -- 9 FAM 402.9-10 -- for a current list of E-2 treaty countries . Like the EB-5 , the E-2 is about investment in a US business . The standard term for an E-2 visa is five years . It can be renewed indefinitely . 13
Non-immigrant business visas are also available to owners and critical employees of non-U . S . companies engaged in substantial international trade when the majority of their international trade is with the U . S . This E-1 visa , like the E-2 above , is limited to nationals of countries that have a qualifying trade agreement with the United States .
Another option is the L-1 intracompany transfer visa . Individuals who have been employed with a non-U . S . company for at least one year out of the last three may be eligible for an L-1 visa to enable a temporary transfer to an affiliated company in the U . S . L-1 visas are limited to three years , renewable to a maximum of seven years . 14
TIME IS ALSO ON YOUR SIDE WITH NON-IMMIGRANT VISA WAIVERS
Pursuant to INA 212 ( d )( 3 ), most inadmissibilities can be waived in the exercise of discretion for non-immigrant visas . The only inadmissibilities that cannot be waived
Everyone makes mistakes . Some can come back to haunt you . If you have erred in the past , it could affect admissibility and temporarily or permanently prevent you from obtaining an EB-5 visa , no matter how much money you spend . For most people , however , there are options .
Steven D . Heller
Steven D . Heller is the director of SDH US Immigration Law , Ltd ., a UK-based U . S . immigration law firm established in 2008 . He is also counsel to Chavin Immigration Law Office in London . He has been practicing U . S . immigration law since 1992 , with interest in family matters and inadmissibility issues . Heller has worked with the U . S . Embassy in London , INS / USCIS and the New York Association for New Americans . He is a 1991 graduate of the Georgetown University Law Center and a member of the New York Bar .
1 . INA § 212 ( a )( 2 ) 2 . See 9 FAM 302.3-2 ( B )( 4 )( e ). But n . b . an admission for a crime for which the individual was tried and acquitted cannot be the basis for an inadmissibility determination . 3 . See Practice Pointer : Dealing with U . K . Cautions at the U . S . Embassy , AILA InfoNet Doc
14021952 ( 16 December 2014 ). 4 . INA § 212 ( a )( 6 )( C )( ii ) 5 . INA § 212 ( a )( 9 )( B )( i )( I ) 6 . INA § 212 ( a )( 9 )( B )( i )( II ) 7 . INA § 212 ( g )( 2 ) 8 . INA § 212 ( g )( 1 ) 9 . 9 FAM 302.2 10 . Matter of Pilch , 21 I & N Dec . 627 ( BIA 1996 ) 11 . INA § 212 ( a )( 6 )( C )( iii ) 12 . INA § 212 ( a )( 9 )( B )( v ) 13 . See generally 9 FAM 402.9-4 , et seq . 14 . INA § 101 ( a )( 15 )( L ) 15 . 16 I & N Dec . 491 ( BIA 1978 ) 16 . 9 FAM 305.4-3 ( C )
87 EB5 INVESTORS MAGAZINE