US Immigration Visa Applications and Waivers of Inadmissibility

By: Chaninat & Leeds, US Immigration Lawyers Thailand

Article Summary: The following article will be of particular use to American Citizens wishing to submit a K1 visa or K3 visa application to the United States Citizenship and Immigration Services (USCIS) for their Thai fiancé(e) or spouse . In addition to discussing grounds for inadmissibility, such as employment in a go-go or hostess bar deemed as prostitution, the article includes information on US visa waivers Thailand such as the Application for Waiver of Ground Excludability (Form I-601). Also, practical information is provided, including the address, office hours, and jurisdiction of the Department of Homeland Security, Bangkok District Office, located near the US Embassy in Thailand.

Part 1: Presents an INTRODUCTION and GENERAL GROUNDS FOR INADMISSABILITY

Part 2: Provides practical information pertaining to visa denials and WAIVER APPLICATIONS

Part 3: Discusses the FACTORS USED IN DETERMINING WHETHER TO GRANT A WAIVER as well as PROSTITUTION IN THAILAND as grounds for inadmissibility:

Part 4: Provides information about DEPARTMENT OF HOMELAND SECURITY: BANGKOK DISTRICT OFFICE

Part 5: Gives specific information on WAIVERS AVAILABLE FOR OTHER GROUNDS

PART 1

Summary: This part will provide information about problems that citizens of Thailand may have when applying for the K1 fiancée visa Thailand and the K3 marriage visa Thailand and the guidelines the US Embassy of Thailand and the Department of Homeland Security employ for grounds for inadmissibility, such as criminal behavior, including employment related to prostitution.

INTRODUCTION

In the wake of the attacks on the World Trade Center in New York, it has become increasingly difficult for Thai people to obtain visas to enter the US. This is particularly true for individuals with a history marred by any criminal activity, no matter how inconsequential. These problems are not limited to Thais (or any other foreign nationals) who simply wish to visit the US for marriage, tourist, education, or business purposes. It also has affected those who are already in the US legally and find themselves barred from the US on return from visiting their homeland or another foreign country.

In the following paragraphs we will discuss the particulars of the US visa policy to deny entry based on the US Government's current grounds for inadmissibility and how and when exceptions or waivers may be applicable. While there are a variety of causes for why an individual may be deemed inadmissible or removable from the United States, there are waivers available for some, but not all of these reasons or situations. We will explain when and how such waivers are available, discuss the situations in which they are not, and provide general guidelines for navigating the application process.

GENERAL GROUNDS FOR INADMISSIBILITY

Grounds for inadmissibility can be brought against undocumented individuals, non-citizens seeking re-entry, and non-citizens seeking a green card. Legal Permanent Residents attempting to apply for naturalization will likely have difficulty if they are found inadmissible because of criminal grounds. Criminal grounds include those that can be generally classified into the following categories:
1. A single crime deemed morally reprehensible.
2. Any controlled substance law violation.
3. Two or more convictions with combined prison sentences of five years or more.
4. Suspicion of being involved in the trafficking of illegal drugs.
5. Having engaged in an illegal occupation such as prostitution.
6. Habitual users of drugs

Other individuals may face grounds of inadmissibility if they are deemed mentally or physically incapacitated in a manner that makes them a potential threat to themselves or others.

In regards to prostitution, an alien is excludable under INA 212(a)(2)(D) if he or she:
(i) is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, entry, or adjustment of status,
(ii) directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for a visa, entry, or adjustment of status) procured or attempted to procure or to import, prostitutes or persons for the purpose of prostitution, or receives or (within such 10-year period) received, in whole or in part, the proceeds of prostitution, or
(iii) is coming to the United States to engage in any other unlawful commercialized vice whether or not related to prostitution, is excludable.

In practice, this means that if the applicant has a work history that includes employment at a hostess bar or other establishment that engages in prostitution it may be determined that the applicant was involved in prostitution and the decision to exclude or not exclude the applicant is at the discretion of the consular officer. Even if an applicant for a fiancé visa does not admit to prostitution it is possible for the consular officer to make that conclusion independently based on the applicant having indirectly received the proceeds from prostitution or simply because the consular officer suspects that was the case. Either way, the applicant could be rendered inadmissible.

Certainly, if the applicant admits to working in a “go go” or hostess bar they may be excluded based on association with prostitution. However, if the applicant withholds such information from the USCIS and then is nevertheless determined excluded by the consular officer because of suspicion of engagement in prostitution, then the applicant must overcome excludability from prostitution as well as falsifying a visa application.

The USCIS does not have an official policy that is available to the public concerning “bar girls” or women who have had employment in hostess or “go go” bars. Individuals and their situations are evaluated on a case by case basis by the consular officer handling their cases.

However, individuals engaged in prostitution may be eligible for waivers (I.N.A. Sec. 212h)

Part 2