Visa Ineligibility

US Citizens Born Abroad

Both an adult and a child born outside the US must prove that they possess a legitimate claim to U.S. citizenship in order to get a first US passport.  The longer the wait to apply for a first passport, the more difficult it can be to gather the needed evidence to make a case for US citizenship.  The evidence becomes significantly more difficult to gather with time, especially after the US citizen parent and other witnesses to the activities of their life pass away. In general, the child (or adult child of a US citizen born abroad) must prove that the transmitting US parent spent five or more years in the United States before his birth.  The specific requirements vary. For example, the physical presence requirements for the child of a married couple differ from those of a child born to an unmarried, single parent. If you think that you may qualify for a US passport as a person born abroad to a US citizen and would be interested in claiming those rights, contact a U.S. immigration lawyer.

Adult Applications for Citizenship/Reversing Renunciation

For those whose U.S. Citizen parent has passed away, producing evidence of physical presence in the U.S. can be challenging. Let’s take Jamal (name changed to protect his privacy), Jamal was applying to gain U.S. citizenship through his mother after both of his parents had passed away sadly. To prove his mother had lived in the U.S. for longer than five years before he was born, Jamal used the “A file” (immigration and citizenship papers) of his mother, signed before she passed away.  Chavin Immigration Law Office obtained the A file using the Freedom of Information Act.  The A file showed that Jamal’s mother had been living in the U.S. for eight years. However, upon meeting with the U.S. Embassy American Citizen Services to review his application, the consular officer was not fully convinced of the legitimacy of the certifications made by his late mother on the A file. The officer requested further evidence.  Jamal was able to produce a sworn statement from another relative to confirm his mother’s presence in the U.S. Fortunately, this new evidence was accepted by the U.S. Embassy, and Jamal received his U.S. passport in the mail six months later.

For those whose parent(s) renounced U.S. Citizenship before 1980, they may be able to obtain U.S. citizenship through this parent. In the 1980 supreme court case Vance v. Terrazas, U.S. citizenship law changed from saying that pledging allegiance to a foreign country counted is a voluntary form of expatriation, to say that U.S. citizenship can only be relinquished when the citizen acts with the intent to expatriate[1]. Several years ago, Chavin Immigration Law Office dealt with a case like this where Mary (name changed), was attempting to gain U.S. citizenship through her mother who had renounced her citizenship before 1980. Mary’s mother had renounced her citizenship when gaining another country’s passport to go and live with her husband, a foreign diplomat. Because Vance v. Terrazas changed the law under which Mary’s mother’s citizenship was revoked, Mary successfully applied to have her mother’s renunciation reversed. Once this was done, Mary was able to obtain U.S. citizenship through her mother.

The law has recently changed for those whose parents were not married at the time of their birth.  The children of both unwed citizen mothers and unwed citizen fathers must show that their US citizen parent had five years of physical presence in the United States, two of which after fourteen in order to qualify for transmitted US citizenship[2].

In November of 2016, Luis Ramon Morales-Santana and his lawyer presented a case to the US Supreme Court in which Morales-Santana argued that the physical presence requirements for an unwed citizen father violated the Equal Protection Clause of the US Constitution’s Fifth Amendment because they differed from that of an unwed citizen mother. Morales-Santana’s father left the U.S. territory twenty days before his 19th birthday, just missing the requirement of ten years in U.S. territory, five after age fourteen. This requirement differed substantially from that of unwed mothers which required only one year of physical presence in U.S. territories for children to qualify for transmitted citizenship. In June 2017, the US Supreme Court decided Sessions v. Morales-Santana. They found the law discriminatory and ordered that it be changed[3]. The new rule states that all children born to unmarried parents must show the same amount of physical presence in the US. One year will no longer be enough to transmit US citizenship.

[1] Vance v. Terrazas, Justia US Supreme Court, (last visited June 27, 2018).

[2] Acquisition of U.S. Citizenship by a Child Born Abroad, U.S. Department of State, (last visited June 27, 2018).

[3] Sessions v. Morales-Santana, Oyez, (last visited June 27, 2018).


E-1Treaty Trader: Visa for the international business person

The B-1 visa and its ESTA equivalent enable employees of international businesses to visit the USA in furtherance of trading relationships--to meet with clients, negotiate contracts, and attend conferences.  As long as the stay is limited and the business conducted is limited to essentially liaison activities, the B-1 and ESTA are a great, economical means of maintaining an ongoing trading relationship.  Sometimes, however, a more durable or more flexible presence is required.  In such cases, businesses should consider the E-1 Treaty Trader visa.

By regulation, the E-1 visa is specifically for "individuals who will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien's behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national."

Like the E-2 Treaty Investor visa, the E-1 Treaty Trader visa is only available to nationals of countries that have a bilateral treaty with the United States that enables such visas to be issued.  That's why it is called a Treaty Trader.

In the UK, the treaty that enables E visa eligibility is the United Kingdom Friendship, Commerce, and Navigation Treaty of 1948 governing trade between the United States and The United Kingdom. Notably (and unique among such agreements), the UK-US treaty specifically limits eligibility not just to UK nationals, but to UK nationals residing in the UK.  This can become cumbersome when dealing with complex corporate ownership issues or when individuals have spent significant periods of time outside the UK.

Looking the regulatory requirements, the essential elements are:

  1. Nationality of the treaty trader or employee visa applicant. The treaty trader company (or solo treaty trader) must have the nationality of the relevant treaty. The ownership of the company conducting the trade must be UK majority owned and controlled.  Any employees applying for essential employee visas related to this company must be the nationality of the company as well, e.g., British.
  2. The sole purpose of the visa applicant entering the US must be to carry on the trade.
  3. The trade must be substantial in nature. Substantial usually means over $100,000, though no dollar amount is found in the law; and
  4. The international trade conducted by the treaty trader company or solo trader is principally between the US and the foreign state.

One further requirement is that the visa applicant have an intention to depart the United States upon the termination of E-1 status.  The E-1 visa applicant must affirm his/her intention to depart from the United States upon the termination of E-1 status.   For most applicants, this is done simply by providing a signed statement.  If the applicant has applied for an immigrant visa or has had a petition filed for an immigrant status in the past, this may be an issue.

To see if the E-1 visa is right for your service offering or product based business, please schedule a consultation.

Drug Use Page 002When a foreign national seeks admission to the United States, but has been using controlled substances, there are two grounds for inadmissibility that could be triggered directly: Criminal Grounds and Health Grounds. A related health ground described below, regarding non-controlled substances and alcohol, is given for contrast and context. The applicant must be careful to be candid with immigration or consular officers, or border officials, to avoid a misrepresentation ground of inadmissibility.

Inadmissibility for Criminal Convictions or Admissions to a US Immigration Officer related to Drug Offenses

Immigration and Naturalization Act (INA) Sec 212(a)(2)(A)(i)(II)

Persons who (1) have a conviction for, or who (2) admit to having committed acts that constitute the essential elements of, a violation of any law or regulation of a state, the US or a foreign country relating to a controlled substance, are inadmissible. A UK "caution" is considered to be an admission under the second part of this rule.  The petty offense exception does not waive petty drug offenses. Youth may help however. 

An immigrant visa waiver is available only for a conviction or admission to possession of a single offense of a simple possession of less than 30 g of marijuana under INA sec 212(h).  A non-immigrant visa waiver is available for controlled substance ineligibilities.

Mere Usage: Risk of Finding a Permanent Ineligibility Though Unlikely, Improper and Possibly Reversible

If one has a long discussion at a US border or at the US Embassy in London, border or consular officials may well consider someone who has admitted to use of drugs to have admitted the elements of a crime that would constitute a violation of a law of the United States relating to controlled substances.  This would be a permanent ineligibility.  The US Embassy is not supposed to come to findings like this for mere usage without a conviction or caution.  They have however been doing this.  It is possible to protest such a finding and have it reversed, by making such a request with the Visa Office in Washington DC, but the results take a long time.  They are not guaranteed to be positive either.

Inadmissibility Health Grounds Related to Drug Use

Inadmissibility for Physical or Mental Disorder with Associated Harmful Behavior Including Substance Related Disorder (Alcohol or Non-Controlled Substance Abuse)

“Substance Related Disorders” under INA 212(a)(1)(A)(iii)- Alcohol and Other Non-Controlled Substances – 42 CFR Sec 34.2(h)-(i), 9 FAMe 302.2-7(B)(3).  Substance related disorders are found if a US panel physician can document a pattern or use of alcohol or other non-controlled substances (drugs), and can document the effects associated with use on behavior, mental health, physical health.


  • A visa applicant, at his interview, is sent to panel physician by a consular officer if a substance related disorder is suspected because of an admission or finding of alcohol or non-controlled drug abuse. The visa applicant is evaluated by the panel physician to see if they have this substance related disorder. 
  • A waiver is available for this inadmissibility ground, however generally it is not recommended by consular officers. They wait for this ground not to be found by the panel physician because of remission – a lack of substance abuse for 12 months or more.  For additional information on alcohol abuse related ineligibility, please read Drink Driving and Admission to the United States.

Inadmissibility for Persons Determined to be Drug Abusers or Addicts

INA 212(a)(1)(A)(iv), 42 CFR Sec 34.2 (h)-(i); 9 FAMe 302.2-8

A Class “A” determination under this section is for drug abuse or addiction related to controlled substances.  Such drug abuse or addiction is found when there is a “substance related disorder” with any of the controlled substances listed in Sec 202 of the Controlled Substances Act, Schedule I to V.

The Class “A” determination is a medical determination made by a panel physician.  It renders the applicant medically ineligible for a visa.  Unlike with alcohol or non-controlled substance abuse, no harmful behavior is required for inadmissibility. 9 FAMe 302.2-8(B)(1). 

Remission.  As with the alcohol remission, a 12-month period of no substance use or associated harmful behavior is considered full remission.  A panel physician has discretion to determine a longer period.  9 FAM e 302.2-8(B)(2)(a)(4).  The practical significance of this is that immigrant visa applicants must wait the full 12 months, as there are no waivers available for this ground of ineligibility.  9 FAM e 302.2-8(B)(2)(a)(5). 

Consequences of Finding

A Class “A” determination renders the visa applicant ineligible for a visa.  A visa waiver could be recommended for a non-immigrant visa, but is not likely to be.  A Class “B” determination means that the visa applicant does not have a medically ineligible condition, but has a physical or mental abnormality that departs from normal well-being.

Sometimes the physician will defer classification for 3 to 6 months and request that the applicant return for re-examination to check whether abstinence is present.

Applicants with Prior “INA 212(a)(1)(A)(iv)” Ineligibility

If the last refusal was less than one year old, a consular officer will send the applicant to the panel physical for a new medical exam.  This will determine whether the applicant still would have a Class A finding for substance related disorder.  9 FAMe 302.2-8(B)(7).  The doctor may well find the applicant still inadmissible, if it is less than 12 months of remission.  If the applicant is determined to have a Class B medical condition, then the consular officer can request the prior inadmissibility be removed on their record.  If the applicant is otherwise eligible, the consular officer can issue the visa.

If the last refusal was more than a year old, the applicant will still be sent for a new medical:

  • If he is found to be in remission, then he will not be found Class A inadmissible and can enter the US.
  • If the applicant is found Class B (having a medical condition that is not an ineligibility ground), then the consular officer can request the prior inadmissibility, for being a drug addict, be removed from the applicant’s record. If the applicant is otherwise eligible, the consular officer can issue the visa. 9 FAMe 302.2-8(B)(7). 

A non-immigrant waiver is available, but unlikely to be recommended by a consular officer. 

Form I-864

All family based immigrants need an Affidavit of Support (Form I-864) as part of their application.  This helps immigrant visa applicants to overcome the Public Charge ground of visa ineligibility found in the Immigration and Naturalization Act Sec. 212(a)(4).  Those who process through the National Visa Center submit their Form I-864 and supporting documents there first.  Those who direct consular process through the US Embassy in London submit their Form I-864 and supporting documents at their interview.  Those who adjust status in the United States submit their Form I-864 with the National Benefits Center when they file Form I-485.

Note: Foreign nationals who apply for a US immigrant visa or adjust status on a basis other than an alien relative petition do not have to worry about the public charge ineligibility.  These include most employment based immigrants, including the investment based EB-5, and diversity visa (DV) applicants.  

Fiancé visa applicants have a lower standard to meet to overcome the public charge inadmissibility grounds.  Their petitioners may compete Form I-134 instead of Form I-864 at their consular interview.  They can also submit pay stubs or bank statements.

US Tax Returns

The most recent year’s US tax return is absolutely mandatory as a supporting document with the I-864.  The adjudicators prefer that the Form I-864 sponsor submit the tax return copy in the form of a tax summary called a “tax transcript.”  The latter are available for free upon request from the US Internal Revenue Service; those with tax records in the US can request a tax transcript online at

Policing tax reporting. Immigration agencies do not share tax details, but they do police reporting.  Failure to submit the most recent US tax return from the sponsor will be an obstacle to visa issuance.  The US Embassy in London for example will block the immigrants’ application approval after an interview, until the petitioner files a tax return and the applicant submits it to the post.  Likewise, the National Benefit Center will block issuance of the Employment Authorization Document and Advance Parole cards for adjustment of status applicants.

Regular Employment Income

Sponsors with regular employment evidenced by a W-2 in the United States or a P60 in the United Kingdom will have the easiest time with the Affidavit of Support

Self-Employment Income

Sponsors with self-employment should provide in addition to their tax return, evidence to support the gross income stated there.  This evidence can include:

1/ the financial statements of the company to see the income generated by it, especially if the owners are paying themselves in dividend income;

2/ evidence of how the sponsor is making the income reported, e.g., contracts for their work;

3/ evidence that the sponsor’s entity is a going concern, with brochures from their work, business cards, business stationery etc.

Non-Taxable Income

Income from non-taxable sources does not appear on the tax return as “taxable income,” so it must be documented in other ways.

1/ Social Security Income can be documented with bank statements.  The sponsor can highlight the payments from the SSA Treasury.  The bank statements will show electronic transfers to the sponsor’s bank account in the amount of the “Federal Benefit Deposit” from SSA Treas.  There will be a transaction reference number and a reference in prose to “Soc Sec.”  Each monthly payment will generally be identical in a given year. 

  • If the sponsor has time, they can obtain a letter from the local Social Security Administration office verifying the payments that are being made.

2/ Trust Fund Beneficiary Income.  Trusts are used to give income to the beneficiaries in a tax efficient manner, either from living or passed away trust creators. The trust creator has already paid taxes on the money that they earned and later put in the trust.  The money comes out tax free when it goes to the beneficiary.  The trust money that pays for the household expenses of the beneficiary can be documented with:

  1. The trust foundation document,
  2. The statement of the assets in the trust,
  3. A letter from the trust executor,
  4. Bank statements of the trust beneficiary showing the trust payments to her, and
  5. A statement from the beneficiary’s US tax preparer or accountant stating why the trust payments are not found on her tax return.

3/ Legal Settlements.  Money from personal injury settlements, worker’s compensation, medical malpractice or other civil action may not be taxable.  Evidence that can be used to document are:

  1. Certified disposition or judgement and payment schedule awarding the funds, proof of fund deposits in a bank account owned by the sponsor over the past three years, and
  2. A letter from a US tax preparer or accountant stating why the payments are not found on a tax return.

4/ Life insurance proceeds.  You can document life insurance proceeds with a letter or documentation from the life insurance company and bank statements for the past three years.  There are instructions / information on on why these do not appear on tax returns.

5/ Alimony and child support payments are not taxable.  The payor pays taxes on the money he earns on his own return.  Evidence that can be given:

  1. the court order or legal settlement establishing the payment schedule
  2. proof that payments are being deposited in the bank account of the sponsor
  3. payments made based on agreements from outside the court system can be documented by a letter signed by both the payor and recipient

6/ Disability proceeds.  Document them and check with the sponsor’s US tax preparer or accountant for a letter as to why they are not on the tax return as income.

Contact Melissa Chavin – US Visa Lawyer

If you require assistance with your Form I-864, Chavin Immigration Law Office offers an initial consultation to strategize a solution and then follow on assistance, if necessary. Ms. Chavin has years of experience in helping UK citizens with the US visa system. This email address is being protected from spambots. You need JavaScript enabled to view it. to arrange a consultation.

Persons who are ineligible for a visa are also inadmissible to the United States.  Commonly encountered grounds are categorized as follows:

1/ Health Grounds

Class A conditions render a person inadmissible and ineligible for a visa.  They include communicable diseases. HIV is not one of them, but active tuberculosis is.  They also include

(a) physical or mental disorders with associated harmful behavior or harmful behavior that is likely to repeat, as indicated for example by a drink driving offense and

(b) drug addiction or abuse

Class B conditions are those that are not grounds for inadmissibility or ineligibility for a visa, though they are substantial deviations from normal health.  A visa applicant may need to show that they can afford to care for the condition while visiting the United States.

2/ Criminal Grounds

Crimes involving Moral Turpitude (CIMT). Persons who admit to an immigration officer or to a consular officer the elements of a CIMT or those with a criminal record, including a UK caution, may be ineligible for a visa to the United States or inadmissible, even if they already have a US visa.  They should not use visa free travel, a.k.a. ESTA or the visa waiver program.  The categorization of crimes as “involving Moral Turpitude,” is complicated, and often going in for a visitor visa is recommended instead of using visa free travel.   Exceptions to the general rule about having a criminal record including a CIMT exist for those who committed a CIMT when they were young or those who committed only one minor CIMT.  Those are called the juvenile or petty offense exceptions.  Exceptions also exist for criminal records related to political dissidence.  If you have a criminal record, even a UK caution, a consultation with a US lawyer who focuses on analysis of the immigration and visa consequences is highly recommended.

Drug Offenses.  Drug Offenses are a separately named category of criminal grounds for ineligibility for a visa. They are discussed further in this article, Drug Use and Admission to the United States.  As with CIMT, the focus is on whether there has been either a conviction for a drug related crime or an admission to the elements of a drug related crime to a consular officer or other immigration official, like a border official.  Youthful offenses (under 18) related to simple possession or use, as opposed to drug trafficking, may be given more leniency. 

A famous British citizen gave his name for the proposition that a foreign violation of a controlled substance law must involve a statute that includes the intent element necessary for a criminal conviction.  Lennon v. INS, 527 F.2d 187 (2d Cir. 1975).  A specific intent, or mens rea, like willful, knowing, purposeful, reckless, etc. is not needed for a controlled substance violation conviction from the United States.

Planning to Engage in Prostitution in the US.  Engaging in prostitution or soliciting prostitutes or transporting them can all be grounds for inadmissibility and ineligibility for a US visa.  Prostitution is a CIMT, and there is a separate criminal ineligibility section of the Immigration & Naturalization Act (INA) that also covers related acts.  INA Sec 212(a)(2)(D) has three sub-sections: (1) engaging in prostitution, (2) procuring prostitution and (3) coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.  The first two sections have 10 year ineligibilities; the last one has no time horizon.  Exceptions may be argued.  For example, soliciting a prostitute for oneself one-time as a “john,” or someone who hired a prostitute, is not a ground for ineligibility under INA 212(a)(2)(D) according to the manual used by visa adjudicators at the US Embassy in the UK, the Foreign Affairs Manual.

If you have a concern in one of these criminal grounds for visa ineligibility, consult with a US immigration lawyer before applying for a visa or attempting to enter the United States with visa free travel.  An ineligibility finding may not be the last word, as a non-immigrant waiver may be available.  This is discussed briefly in the next paragraph.

3/ Expedited Removal or Removal in Proceedings

Persons who have been ordered removed in administrative proceedings, for example, (1) after a confrontation when trying to enter the US at an airport or (2) after being picked up, detained and sent home for working unlawfully or overstaying a period of authorized stay, may be inadmissible and therefore ineligible for a new visa for periods of 5, 10 or 20 years. 

A waiver for this ineligibility may be available for a visitor or other visa, after a period of time has passed.  A waiver for a nonimmigrant or visitor visa is known as a non-immigrant waiver, Hranka waiver or 212(d)(3) waiver.  This waiver requires three elements to qualify for the recommendation for it by a consular officer at a visa interview: (1) legitimate travel purpose, (2) good ties to a place outside the United States, and (3) evidence that the activity that caused the ineligibility will not repeat.  Time is a powerful bolster for each of these elements.  Consult with a US immigration lawyer, if you would like to enter the US after a prior removal or deportation.

4/ Fraud and Material Misrepresentation 

Fraud and material misrepresentation result in permanent ineligibilities.  A person who incurs this bar for lying to an immigration officer or consular officer in order to obtain an immigration or visa benefit will always need a waiver, like the Hranka waiver described above to obtain a visa to visit the United States.  This ineligibility was developed obviously to encourage all visa applicants and those approaching the US border to be truthful with border and consular officials.

The fraud and misrepresentation finding has been developed in the past year with regards to the 30-60 Day Rule, to become a 90-day rule.  Those who engage in activities that are inconsistent with their promised activities when they interviewed for their visitor visa may be found to have misrepresented themselves to the consular officer at that time.  This includes unauthorized work or applying for adjustment of status (green card) after a new marriage, if it occurs in less than 90 days from entrance.  They may find themselves with a fraud and misrepresentation finding the next time they visit a US consulate or embassy. 

Errors on the Online Visa Application Forms DS-160 or DS-260.  Note that you will not incur a fraud and misrepresentation finding for a simple error on your online-visa application forms, if you correct them during your visa interview.  If there is an error on your form of which you are aware, simply inform the consular officer at the time of your interview.  A simple error would be found before the Security and Background Check questions!  If something has changed or you need to correct something entered in the Security and Background questions, consult a US immigration attorney!  You will need to request that the visa application be re-opened or fill in a new form. 

5/ Security and Related Grounds: Terrorist Activity

Applicants for visas who have engaged in terrorist activities, are terrorists, have incited terrorist activities or are members of terrorist organizations or political or social grounds that endorse or espouse terrorist activities are inadmissible or ineligible for a visa.  Waivers are available in only limited circumstances.  Read more about Visa Decisions Delays linked to national security concerns.

Contact Melissa Chavin – US Visa Lawyer

To discuss your specific circumstances and requirements, contact London based US lawyer Melissa Chavin to schedule a paid consultation. Consultations may be conducted by phone, in person in London, or by video conference and cost GB£425. Ms. Chavin is licensed to practice US law, and can help you resolve your concerns.