9 FAM 301.4

9 FAM 301.4 Ineligibilities and Grounds for Refusals (CT:VISA-1664; 12-06-2022) (Office of Origin: CA/VO) .4-1 overview of grounds for refusal (CT:VISA-1442; 12-29-2021) a. Basis for Refusal: The basis on which applicants must be denied visas are established by law, as part of the Immigration and Nationality Act (INA). INA 214(b) and INA 221(g) are common bases for refusal. Other grounds for refusal are found in INA 212(a) INA 212(e) and INA 212(f). (Note: We 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 .3 and .4) ; (3) INA 212(a)(3) : Security and related grounds (see .5 , .6 , and .7) ; (4) INA 212(a)(4) : Public charge (see .8) ; (5) INA 212(a)(5) : Labor certification, qualification (see .1-5) ; (6) INA 212(a)(6) : Illegal entrants, immigration violators, misrepresentation (see .9) ; (7) INA 212(a)(7) : Documentation requirements (see .1-3 and .1-4) ; (8) INA 212(a)(8): Ineligible for citizenship (see .10) ; (9) INA 212(a)(9) : Previously removed, unlawfully present, unlawfully present after previous immigration violations (see .11) ; (10) INA 212(a)(10): Other miscellaneous grounds (see .12) ; (11) INA 212(e) : Former exchange visitors (see .13-2) ; (12) INA 212(f) : Presidential Proclamations and sanctioned activity (see .14) ; (13) INA 214(b) : Presumption of immigrant status (see .1-2) ; (14) INA 221(g) : Application does not comply with INA (see .1-8) ; and (15) INA 222(g) : Nonimmigrant overstay, application not in country of nationality (see .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 .1-2 ; (b) IV documentary requirements – see .1-3 ; (c) NIV documentary requirements – see .1-4 ; (d) Labor certification requirements – see .1-5 ; (e) Unqualified physician – see .1-6 ; (f) Uncertified foreign health care worker – see .1-7 ; (g) Failure of application to comply with INA – see .1-8 ; and (h) Individuals subject to INA 222(g) – see .1-9. (2) Health and Medical Grounds: (a) Communicable diseases – see .2-5 ; (b) Required vaccinations – see .2-6 ; (c) Physical or mental disorder or condition posing threat to property or safety – see .2-7 ; and (d) Drug abuse or addiction – see .2-8. (3) Criminal Grounds: (a) Crimes involving moral turpitude – see .3-2 ; (b) Multiple criminal convictions – see .3-4 ; (c) Prostitution and criminalized vice – see .3-6 ; (d) Criminal activity where immunity asserted – see .3-7 ; (e) Human trafficking – see .3-8 ; and (f) Money laundering – see .3-9. (4) Grounds Related to Controlled Substances: (a) Controlled substance violations – see .4-2 ; and (b) Controlled substance trafficking – see .4-3. (5) National Security Grounds: (a) Intent to commit espionage or sabotage – see .5-2 ; (b) Intent to violate export control laws – see .5-3 ; (c) Intent to commit unlawful activity in the United States – see .5-4 ; (d) Intent to overthrow U.S. government – see .5-5 ; (e) Immigrant membership in a totalitarian party – see .5-6. (6) Terrorism-Related Grounds: (a) Terrorist activities – see .6-2 ; (b) Association with terrorist organizations – see .6-3 ; (c) Section 306 of the Enhanced Border Security and Visa Reform Act of 2002 – see .6-4. (7) Human Rights Violations: (a) Participation in particularly severe violations of religious freedom – see .7-3. (b) Participation in Nazi persecutions – see .7-4 ; (c) Participation in genocide - see .7-5 ; (d) Participation in torture – see .7-6 ; (e) Participation in extrajudicial killing – see .7-7 ; (f) Participation in the use or recruitment of child soldiers – see .7-8 ; and (g) Participation in forced or coercive abortion or sterilization – see .7-9 ; (h) Participation in coercive organ or tissue transplantation – see .7-10 ; and (i) Presidential Proclamation 8697 - see .7-11. (8) Public Charge: See .8. (9) Illegal Entry, Misrepresentation, and Other Immigration Violations: (a) Present without admission or parole – see .9-2 ; (b) Failure to attend removal proceedings – see .9-3 ; (c) Misrepresentation – see .9-4 ; (d) Falsely claiming citizenship – see .9-5 ; (e) Stowaways – see .9-6 ; (f) Smugglers – see .9-7 ; (g) Subject to civil penalty – see .9-8 ; and (h) Student visa abusers – see .9-9. (10) Citizenship restrictions: (a) Ineligible for citizenship – see .10-2 ; (b) Departed, remained outside U.S. to avoid military service – see .10-3. (11) Previous removal and unlawful presence: (a) Individuals previously removed – see .11-2 ; (b) Individuals unlawfully present – see .11-3 ; and (c) Individuals unlawfully present after previous immigration violation - see .11-4. (12) Ineligibility Based on Other Activities: (a) Practicing polygamists – see .12-2 ; (b) Guardian required to accompany helpless individual – see .12-3 ; (c) International child abduction – see .12-4 ; (d) Unlawful voters – see .12-5 ; (e) Former citizens who renounced citizenship to avoid taxation – see .12-6. (13) Miscellaneous Ineligibilities: (a) Former foreign exchange visitors – see .13-2 ; (b) Unauthorized disclosure of U.S. confidential business information – see .13-3 ; (c) Frivolous asylum applications – see .13-4 ; and (d) Waivers of rights, privileges, exemptions, and immunities – see .13-5. (14) Sanctioned Activities: (a) Adverse foreign policy consequences – see .14-2 ; (b) Suspension of entry by the president – see .14-3 ; (c) Individuals who have aided and abetted Colombian insurgent and paramilitary groups – see .14-4 ; (d) Individuals involved in confiscation of property of U.S. nationals – see .14-5 ; (e) Specially Designated Nationals – see .14-6 ; (f) Iran Threat Reduction and Syria Human Right Act – see .14-7 ; (g) Sergei Magnitsky Rule of Law Accountability Act of 2012– see .14-8 ; (h) Participation in certain political killings– see .14-9 ; and (i) Presidential Proclamation 9645 - see .14-10. .4-2 Applicability of Ineligibilities to IV and NIV Cases (CT:VISA-1442; 12-29-2021) a. Does This Ineligibility Apply to This Case? 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. b. Nonimmigrants: NIV applicants are subject to INA 212(a) ineligibilities, except as noted below: (1) Nonimmigrants are subject to INA 212(a)(1) health-related ineligibilities, except for INA 212(a)(1)(A)(ii) vaccinations requirements, 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. .4-3 WAIVING or overcoming refusals and INELIGIBILITIES (CT:VISA-1664; 12-06-2022) Certain ineligibility findings 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 .1 through .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.