" 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
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 non-
immigrant 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 non-
immigrant visa, and the legal standard is lower.
are those relating to security. The standard for non-
immigrant 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.
"Medical
inadmissibilities
can be
overcome."
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
87
EB5 INVESTORS M AGAZINE
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
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
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