2 June 2009

Waivers of US Visa Denials and Waivers in Thailand by Chaninat and Leeds Co., Ltd.

There is a plethora of information on the internet that focuses on the grounds of US visa denials and the available waivers of inadmissibility.  Most of these articles, however, focus on the black letter law without much written regarding the practical realities of visa denials and waivers.  Rather than taking a bird’s eye view, this article takes a worm’s eye view of the practice at the consular level based on 15 years of practice of an American lawyer in Thailand.

Main Grounds of Excludability

According to the United States Immigration and Nationality Act, there are ten major grounds of excludability. ¹ In our experience the most commonly encountered grounds of excludability are actually communicable diseases, especially HIV/AIDs.  In the Thai context one of the most discussed grounds of denial is based on prostitution. 

Reality of Numbers

There are several categories of visa denials that may allow for a waiver of grounds of inadmissibility (I-601) based on the relevant evidence presented.  Worldwide statistics from 2008 released by the US Bureau of Consular Affairs shed a light on the true numbers of visa denials, presented in the chart below. For those applying for nonimmigrant visas, the majority of applicants were denied visas based on the “failure to establish entitlement to nonimmigrant status” (line 56), followed by “non-compliance with the provisions of INA” (57), denials on the basis of misrepresentation (32) and unlawful presence (47).  As for immigrant visas, the majority of applicants were denied visas based similarly on “non-compliance with the provisions of INA or regulations issued pursuant thereto” (57), unlawful presence (47) labor certification (28) and misrepresentation (32).  Thus, the main grounds of denial are actually failing to establish entitlement and non-compliance with regulations; these catch-all phrases usually mean the petition or application presented did not meet even basic standards for visa qualification. 

Myth of Prostitution

In spite of the volume of material published regarding prostitution as a cause of visa denial, in our experience, cases of denial on the grounds of prostitution are quite rare. The number of applicants that are concerned about this issue seems disproportional when compared to the number of actual recorded cases.  This observation is supported by the US Bureau of Consular Affairs statistics: for non-immigrant visas, 27 persons were denied visas as a result of suspected involvement in prostitution and two of those that were denied on this ground subsequently received a waiver.  This number drops for immigrant visa applicants: 17 were denied and nine received waivers.  Out of almost two and a half million visa denials worldwide, clearly denial on the grounds of prostitution is a rather small proportion. 

HIV/AIDs

The majority of people seeking our assistance with waiver applications, however, are for visa denial based on the grounds of communicable diseases, HIV/AIDs in particular.  If an individual is faced with inadmissibility on the basis of HIV/AIDs he/she will normally be required to file a waiver application and provide supplementary documentation, including:  proof of insurance covering applicant’s HIV positive condition in the form of a letter from an insurance company acknowledging coverage for HIV; and a signed statement completed by the physician or health facility that has agreed to provide counseling and treatment or observation.  We have never had any problems seeking this waiver.