9 FAM 302.3 

(U) Ineligibility based on Criminal Activity, Criminal Convictions and related activities - INA 212(a)(2)

(CT:VISA-558;   04-02-2018)
(Office of Origin: CA/VO/L/R)

9 FAM 302.3-1  (u) Statutory and REgulatory AuthoritY

9 FAM 302.3-1(A)  (U) Immigration and Nationality Act

(CT:VISA-1;   11-18-2015)

(U) INA 101(a)(48) (8 U.S.C. 1101(a)(48)); INA 212(a)(1) (8 U.S.C. 1182(a)(1)); INA 212(a)(2)(A) (8 U.S.C. 1182(a)(2)(A)); INA 212(a)(2)(B) (8 U.S.C. 1182(a)(2)(B)); INA 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)); INA 212(a)(2)(D) (8 U.S.C. 1182(a)(2)(D)); INA 212(a)(2)(E) (8 U.S.C. 1182(a)(2)(E)); INA 212(a)(2)(H) (8 U.S.C. 1182(a)(2)(H)); INA 212(a)(2)(I) (8 U.S.C. 1182(a)(2)(I)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 212(g) (8 U.S.C. 1182(g)); INA 212(h) (8 U.S.C. 1182(h)); INA 212(i) (8 U.S.C. 1182(i)); INA 216 (8 U.S.C. 1186a)); INA 221(g) (8 U.S.C. 1201(g)); INA 237(a)(2)(A) (8 U.S.C. 1227(a)(2)(A)).

9 FAM 302.3-1(B)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 8 CFR 212.7(a)(4); 22 CFR 40.21; 22 CFR 40.22; 22 CFR 40.24; 22 CFR 40.25; 22 CFR 40.27; 22 CFR 40.28.

9 FAM 302.3-1(C)  (U) Public Laws

(CT:VISA-1;   11-18-2015)

(U) Juvenile Justice and Delinquency Prevention Act of 1974, Public Law 93-415; Comprehensive Crime Control Act of 1984, Public Law 98-473; Immigration Act of 1990, Public Law 101-649, sec. 505; Omnibus Consolidated Appropriations Act, 1997, Public Law 104-208, sec. 322; USA Patriot Act, Public Law 107-56, sec. 1006; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Public Law 110-457.

9 FAM 302.3-1(D)  (U) United States Code

(CT:VISA-1;   11-18-2015)

(U) 18 U.S.C. 16; 18 U.S.C. 1621; 18 U.S.C. 1956; 18 U.S.C. 1957; 18 U.S.C. 3607; 18 U.S.C. 5031; 22 U.S.C. 7102(8).

9 FAM 302.3-2   (U) Crimes Involving Moral Turpitude - INA 212(a)(2)(A)(i)(I)

9 FAM 302.3-2(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) In general, aliens who have been convicted of, or admit to commission of, certain statutory offenses that involve moral turpitude, whether under U.S. law or foreign law, are ineligible under INA 212(a)(2)(A)(i)(I).  See 9 FAM 302.3-2(B)(4) for guidance on what constitutes a legally-valid admission).

9 FAM 302.3-2(B)  (U) Application

9 FAM 302.3-2(B)(1)  (U) Applying INA 212(a)(2)(A)(i)(I)

(CT:VISA-558;   04-02-2018)

a. (U) Determining Ineligibility:  When adjudicating a visa application for an applicant whom you have reason to believe has committed a crime involving moral turpitude, you must determine whether:

(1)  (U) The offense committed involves moral turpitude (see 9 FAM 302.3-2(B)(2));

(2)  (U) The applicant has been convicted (see 9 FAM 302.3-2(B)(3)); and/or

(3)  (U) The applicant has admitted or may admit that he or she has committed acts which constitute the essential elements of a crime (see 9 FAM 302.3-2(B)(4) for guidance on legally-valid admissions).

b. (U) Exceptions to Ineligibility:  Certain statutory exceptions may prevent a determination of INA 212(a)(2)(A)(i)(I) ineligibility resulting from a conviction for a crime involving moral turpitude. These exceptions generally do not apply to other ineligibilities that may result from the same conviction , for example INA 212(a)(2)(C)(i) or INA 212(a)(3)(B)These INA 212(a)(2)(A)(i)(I) exceptions relate to:

(1)  (U) Crimes that fall under the "sentencing exception" (see 9 FAM 302.3-2(B)(6);

(2)  (U) Crimes committed prior to age 18 (see 9 FAM 302.3-2(B)(7) and 302.3-2(B)(8)); and

(3)  (U) Certain purely political offenses and convictions (see 9 FAM 302.3-2(B)(9)).

c.  (U) Use of the Exceptions to Quickly Determine Lack of INA 212(a)(2)(A)(i)(I) Ineligibility in Some Cases: In some cases where it may be difficult to determine whether the crime in question is a crime involving moral turpitude (CIMT), it may be more efficient to determine if any of the exceptions would apply regardless of whether the crime is a CIMT or not .  For example, if you already know that the sentencing exception will apply, or if the crime was committed when the applicant was younger than 18 years of age (see 9 FAM 302.3-2(B)(1) paragraph b above), you may be able to rule out a potential INA 212(a)(2)(A)(i)(I) ineligibility irrespective of whether or not the crime is a true CIMT.

9 FAM 302.3-2(B)(2)  (U) Defining Moral Turpitude

(CT:VISA-558;   04-02-2018)

a. (U) Evaluating Moral Turpitude Based Upon Statutory Definition of Offense and U.S. Standards:  To render an alien inadmissible under INA 212(a)(2)(A)(i)(I), the conviction or admission must be for a statutory offense which involves moral turpitude.  The presence of moral turpitude is determined by the nature of the statutory offense for which the alien was convicted, particularly in the wording of the specific law that the applicant was convicted under, and not by the acts underlying the conviction.  Therefore, evidence relating to the underlying act, including the testimony of the applicant, is not relevant to a determination of whether the conviction involved moral turpitude except when the statute is divisible (see 9 FAM 302.3-2) or a political offense (see 9 FAM 302.3-2(B)(9)).  The presence of moral turpitude in a statutory offense, whether a U.S. state law, U.S. Federal law, or a foreign law, is determined according to U.S. Federal law.

b. (U) Defining Moral Turpitude:  Statutory definitions of crimes in the United States consist of various components, which must be met before a conviction can be supported.  Some of these components have been determined in previous judicial or administrative decisions to involve moral turpitude.  A conviction for a statutory offense will involve moral turpitude if one or more of the parts of that offense have been determined to involve moral turpitude.  The most common offenses involving moral turpitude include:

(1)  (U) Fraud;

(2)  (U) Larceny; or

(3)  (U) Intent to harm persons or things.

c.  (U) Common Crimes Involving Moral Turpitude:  Categorized below are some of the more common crimes involving moral turpitude.  Each category is followed by a separate list of related crimes, which are often held not to involve moral turpitude.

(1)  (U) Crimes Committed Against Property:

(a)  (U) Most crimes committed against property that involve moral turpitude include the element of fraud.  The act of fraud involves moral turpitude whether it is aimed against individuals or the government.  Fraud generally involves:

(i)     (U) Making false representation;

(ii)    (U) Knowledge of such false representation by the perpetrator;

(iii)    (U) Reliance on the false representation by the person defrauded;

(iv)   (U) An intent to defraud; and

(v)    (U) The actual act of committing fraud

(b)  (U) Other crimes committed against property involving moral turpitude involve an inherently evil intent.  The following list comprises crimes frequently committed against property, which may generally be held to involve moral turpitude for the purposes of visa issuance:

(i)     (U) Arson;

(ii)    (U) Blackmail;

(iii)    (U) Burglary;

(iv)   (U) Embezzlement;

(v)    (U) Extortion;

(vi)   (U) False pretenses;

(vii)   (U) Forgery;

(viii)  (U) Fraud;

(ix)   (U) Larceny (grand or petty);

(x)    (U) Malicious destruction of property;

(xi)   (U) Receiving stolen goods (with guilty knowledge);

(xii)   (U) Robbery;

(xiii)  (U) Theft (when it involves the intention of permanent taking); and

(xiv)  (U) Transporting stolen property (with guilty knowledge).

(c)  (U) Crimes against property which generally do not fall within the definition of crimes involving moral turpitude include:

(i)     (U) Damaging private property (where intent to damage is not required);

(ii)    (U) Breaking and entering (requiring no specific or implicit intent to commit a crime involving moral turpitude);

(iii)    (U) Passing bad checks (where intent to defraud is not required);

(iv)   (U) Possessing stolen property (if guilty knowledge is not essential);

(v)    (U) Joy riding (where the intention to take permanently is not required); and

(vi)   (U) Juvenile delinquency.

(2)  (U) Crimes Committed Against Governmental Authority:

(a)  (U) Moral Turpitude Crimes: Crimes committed against governmental authority which generally fall within the definition of crimes involving moral turpitude include:

(i)     (U) Bribery;

(ii)    (U) Counterfeiting;

(iii)    (U) Fraud against revenue or other government functions;

(iv)   (U) Mail fraud;

(v)    (U) Perjury;

(vi)   (U) Harboring a fugitive from justice (with guilty knowledge); and

(vii)   (U) Tax evasion (willful).

(b)  (U) Crimes Without Moral Turpitude:  Crimes committed against governmental authority, which would not constitute crimes involving moral turpitude, are, in general, violation of laws which are regulatory in character and which do not involve the element of fraud or other evil intent.  The following list assumes that the statutes involved do not require the showing of an intent to defraud, or evil intent:

(i)     (U) Black market violations;

(ii)    (U) Breach of the peace;

(iii)    (U) Carrying a concealed weapon;

(iv)   (U) Desertion from the Armed Forces;

(v)    (U) Disorderly conduct;

(vi)   (U) Drunk or reckless driving (however, aggravated drunk driving may be a CIMT);

(vii)   (U) Drunkenness;

(viii)  (U) Escape from prison;

(ix)   (U) Failure to report for military induction;

(x)    (U) False statements (not amounting to perjury or involving fraud);

(xi)   (U) Firearms violations;

(xii)   (U) Gambling violations;

(xiii)  (U) Immigration violations;

(xiv)  (U) Liquor violations;

(xv)  (U) Loan sharking;

(xvi)  (U) Lottery violations;

(xvii) (U) Possessing burglar tools (without intent to commit burglary);

(xviii) (U) Smuggling and customs violations (where intent to commit fraud is absent);

(xix)  (U) Tax evasion (without intent to defraud); and

(xx)  (U) Vagrancy.

(3)  (U) Crimes Committed Against Person, Family Relationship, And Sexual Morality:

(a)  (U) Moral Turpitude:  Crimes committed against the person, family relationship, and sexual morality, which are normally considered crimes involving moral turpitude include:

(i)     (U) Abandonment of a minor child (if willful and resulting in the destitution of the child);

(ii)    (U) Assault (this crime is broken down into several categories, which involve moral turpitude):

·         (U) Assault with intent to kill;

·         (U) Assault with intent to commit rape;

·         (U) Assault with intent to commit robbery;

·         (U) Assault with intent to commit serious bodily harm; and

·         (U) Assault with a dangerous or deadly weapon (some weapons may be found to be lethal as a matter of law, while others may or may not be found factually to be such, depending upon all the circumstances in the case.  Such circumstances may include, but are not limited to, the size of the weapon, the manner of its use, and the nature and extent of injuries inflicted.);

(iii)    (U) Bigamy;

(iv)   (U) Contributing to the delinquency of a minor;

(v)    (U) Gross indecency;

(vi)   (U) Incest (if the result of an improper sexual relationship);

(vii)   (U) Kidnapping;

(viii)  (U) Lewdness;

(ix)   (U) Voluntary Manslaughter:

·         (U) Involuntary Manslaughter, where the statute requires proof of recklessness generally will involve moral turpitude.  A conviction for the statutory offense of vehicular homicide or other involuntary manslaughter that only requires a showing of negligence will not involve moral turpitude even if it appears the defendant in fact acted recklessly.

(x)    (U) Mayhem;

(xi)   (U) Murder;

(xii)   (U) Pandering;

(xiii)  (U) Possession of child pornography;

(xiv)  (U) Prostitution; and

(xv)  (U) Rape, including statutory rape.

(b)  (U) No Moral Turpitude: Crimes committed against the person, family relationship, or sexual morality which are not normally found to be crimes involving moral turpitude include:

(i)     (U) Simple Assault (i.e., any assault, which does not require an evil intent or depraved motive, although it may involve the use of a weapon, which is neither dangerous nor deadly);

(ii)    (U) Creating or maintaining a nuisance (where knowledge that premises were used for prostitution is not necessary);

(iii)    (U) Incest (when a result of a marital status prohibited by law);

(iv)   (U) Involuntary manslaughter (when only negligence is required for conviction));

(v)    (U) Libel;

(vi)   (U) Mailing an obscene letter;

(vii)   (U) Mann Act violations (where coercion is not present);

(viii)  (U) Riot; and

(ix)   (U) Suicide (attempted).

(c)  As addressed in 9 FAM 302.3-2 (B)(1) above, even if an alien was convicted or admitted to a crime, even a very serious crime, an INA 212(a)(2)(A)(i)(I) ineligibility may not always result, depending on a variety of factors including whether one of the "exceptions" apply. However, in cases where INA 212(a)(2)(A)(i)(I) does not apply, this does not automatically shield the arrest or conviction from other potential ineligibilities, such as INA 212(a)(1)(A) or even INA 212(a)(A)(i)(II).

(4)  (U) Intentional Distribution of Controlled Substances:  The Board of Immigration Appeals has determined that in general, a conviction for the intentional distribution of a controlled substance or a conviction for drug trafficking is a crime involving moral turpitude. The mere possession or use of a controlled substance is not generally sufficient for  INA 212(a)(2)(A)(i)(I) ("2A1") however it may result in an INA 212(a)(2)(A)(i)(II) ("2A2") ineligibility and/or an INA 212(a)(2)(C)(i) ineligibility.  A typical drug statute that would constitute a crime involving moral turpitude is “possession with intent to distribute.”  In order to result in an INA 212(a)(2)(A)(i)(I) ineligibility, a conviction or legally-valid admission is required.  Consular officers should note that applicants may be found ineligible under both INA 212(a)(2)(A)(i)(I) and INA 212(a)(2)(A)(i)(II) and perhaps even under INA 212(a)(2)(C)(1) (which requires only that the “reason to believe” standard be met, and does not require a conviction or even an arrest.) Consular Officers also should consider whether the applicant should be referred to the panel physician for an assessment of a possible ineligibility under INA sections 212(a)(1)(A)(iii) ("1A3") for a physical or mental disorder with behavior that may pose or has posed a threat to others' safety or property including substance-related disorders or 212(a)(1)(A)(iv) ("1A4") for drug abuse or addiction.

d. (U) Attempts, Aiding and Abetting, Accessories, and Conspiracy:

(1)  (U) The following types of crimes are also considered to be crimes involving moral turpitude:

(a)  (U) An attempt to commit a crime involving moral turpitude;

(b)  (U) Aiding and abetting in the commission of a crime involving moral turpitude;

(c)  (U) Being an accessory (before or after the fact) in the commission of a crime involving moral turpitude; or

(d)  (U) Taking part in a conspiracy (or attempting to take part in a conspiracy) to commit a crime involving moral turpitude.

(2)  (U) Conversely, where an alien has been convicted of, or admits having committed the essential elements of, a criminal attempt, or a criminal act of aiding and abetting, accessory before or after the fact, or conspiracy, and the underlying crime is not deemed to involve moral turpitude, then INA 212(a)(2)(A)(i)(I) would not be applicable.

9 FAM 302.3-2(B)(3)  (U) Cases in which Conviction Exists

(CT:VISA-558;   04-02-2018)

a. (U) Defining Conviction:  INA 101(a)(48) defines “conviction” as either:

(1)  (U) A formal judgment of guilt entered by a court; or

(2)  (U) If adjudication has been withheld, a finding of guilty by a judge or jury, a plea of guilty or nolo contendere by the alien, or an admission from the alien of sufficient facts to warrant a finding of guilt; and

(3)  (U) The imposition of some form of punishment, penalty, or restraint of liberty by a judge.  If you have questions as to what constitutes some form of penalty or restraint of liberty in a certain case, you may contact your usual CA/VO/L/A liaison for clarification.

b. (U) Whether a Conviction Exists Is a Factual Finding for the Consular Officer:  Whether a conviction exists is a factual matter for the consular officer, independent of any official record that appears in a database.  An indication that an alien has been convicted of a crime may appear in:

(1)  (U) replies to questions, including as part of a visa application;

(2)  (U) reports of investigations and other government activities;

(3)  (U) police records or other documents that the applicant may be required to submit; or

(4)  (U) any other information which may be developed concerning the applicant.

c.  (U) Evidence Of Conviction:  Official police and/or court records generally establish the existence of a conviction.  However, some convictions that would trigger a finding of INA 212(a)(2)(A)(i)(I) and (II) are no longer a matter of record due to the passage of time, generous expungement provisions under local law, or other reasons.   However, many expungements or pardons may relieve the applicant of the effects of the conviction for purposes of INA 212(a)(2)(i)(I) (and not necessarily other ineligibilities).  Therefore, in cases where an expungement or pardon may have removed the record of conviction from official records, or where the accuracy of records is otherwise suspect, the consular officer may require any evidence relevant to the alien’s history which may appear necessary to determine the facts. Consular officers may require that the applicant provide any or all of the following documents: a copy of the statute of conviction, a copy of the relevant sentencing guidelines, court records, police records, a translation into English if these documents are in a language other than English, and any other records the consular officer determines are relevant. If consular officers have questions about whether a conviction exists for purposes of INA 212(a)(2)(A)(i)(I) or (II), consular officers may send an AO request to CA/VO/L/A.  Consular Officers must first gather the aforementioned documentation, specifically the text of the law that the alien was convicted under and the accompanying sentencing guidelines (with English translation if they are in a language other than English) before submitting the AO request.

d. (U) Expunging Conviction Under U.S. Law:

(1)  (U) Prior to the passage of INA 101(a)(48) a full expungement of a conviction under U.S. law had been held to be equivalent in effect to a pardon granted under INA 237(a)(2)(A)(v) and served to eliminate the effect of the conviction for most immigration purposes.  In light of the passage of INA 101(a)(48), the Board of Immigration Appeals in Matter of Roldan, 22 I & N. Dec. 512, determined that, effective April 1,1997 judicial expungements based on rehabilitative or ameliorative statutes (laws that allowed for expungement of a sentence by a court based on a showing that the defendant had been rehabilitated or was otherwise worthy of relief) would no longer be recognized as effective for eliminating the conviction for immigration purposes.

(2)  (U) The Ninth Circuit Court of Appeals, however, disagreed for a certain period with this holding, and in a series of cases determined that state judicial expungements will be considered effective for eliminating the conviction for immigration purposes if the alien would have been eligible for relief under the Federal First Offender Act or similar statute (see 9 FAM 302.4-2(B)(3)).  The Ninth Circuit subsequently overturned these decisions in the case Nunez-Reyes v. Holder, 646 F.3d 684 (July 14, 2011), and now follows the holding in Matter of Roldan.  However, this decision did not have retroactive effect, so some state judicial expungements prior to July 14, 2011 may still be effective for immigration purposes in the Ninth Circuit only.  Because of the complexity of this issue, and because in most cases the holding in Roldan will stand, if a visa applicant makes an affirmative claim for state judicial expungement relief, this must be submitted as an advisory opinion request to CA/VO/L/A.

e. (U) Expunging Conviction Under U.S. Federal Law:  The Comprehensive Crime Control Act of 1984, effective October 12, 1984, repealed the Federal First Offender provisions cited as 21 U.S.C. 844(b)(1) and the Federal Youth Corrections Act provisions cited as 18 U.S.C. 5021.  Both of these procedures expunged convictions for all purposes.  You should honor certificates verifying expungement under either of these sections.  18 U.S.C. 3607 has replaced these procedures.  An expungement under this section likewise negates a conviction for purposes of INA 212(a)(2)(A)(i)(I).

f.  (U) Convictions Relating To Pre-Trial Actions:

(1)  (U) An applicant has not been convicted of a crime if he or she merely:

(a)  (U) Is under investigation;

(b)  (U) Has been arrested or detained;

(c)  (U) Has been charged with a crime; or

(d)  (U) Is under indictment.

(2)  (U) However, such facts may indicate that some other basis of ineligibility may exist (e.g., INA 212(a)(2)(C)(i), INA 212(a)(1)(A)(iii), etc.).  At your discretion, you may refuse any applicant under INA 221(g) which involves an applicant who has been charged with, but not convicted of, a crime in order to await the outcome of the proceedings (if the outcome is reasonably imminent) or to permit local authorities in appropriate cases to take steps to prevent the departure of the alien from their jurisdiction.  Where applicable, in the case of a nonimmigrant visa applicant charged with a crime, you should also consider how the pending charge may affect the applicant’s intention to return to his or her place of residence, for purposes of INA 214(b)

g. (U) Convictions Relating To Actions During Trial:

(1)  (U) “Nolo Contendere” Plea:  Any court action following a plea of no contest or “nolo contendere” constitutes a conviction.  For this reason it is important that the information as to how an alien pled in court (guilty, not guilty, nolo contendere, etc.)  be established. Consular officers may ask applicants to provide this information as part of the other documentation that is normally requested in these cases.  See 9 FAM 302.3-2(B)(3) paragraph c.

(2)  (U) Conviction in Absentia:  A conviction in absentia does not constitute a conviction, unless the accused had a meaningful opportunity to participate in the judicial proceedings.  Any participation in judicial proceedings by the accused may mean that the conviction was not one made in absentia.  For example, in certain cases where a conviction in absentia has been appealed by the person convicted a person will have legally “appeared” for the purpose of appealing.  In such cases if the conviction is reaffirmed, then it is no longer considered a conviction in absentia.  Similarly, representation by an attorney of the accused in a trial proceeding may preclude a finding that the trial was conducted in absentia.  You must submit all cases where the facts suggest that a conviction may have been made in absentia by AO to CA/VO/L/A.

(3)  (U) Conviction by Court-Martial:  A conviction by court-martial is a conviction for purposes of visa eligibility.

(4)  (U) Judicial Recommendation Against Deportation (JRAD):

(a)  (U) Section 505 of the Immigration Act of 1990, Public Law 101-649, eliminated judicial recommendation against deportation (JARD) for convictions which occurred on or after November 29, 1990, the date of enactment of Public Law 101-649.  The Department of Homeland Security (DHS), and the Department of State will recognize JRADs granted prior to that date.  Those JRADs issued on or after November 29, 1990 will not be recognized.

(b)  (U) JRADs granted prior to November 29, 1990, have “the effect of immunizing the alien” from the application of INA 212(a)(2)(A)(i)(I)with regard to the conviction for which the JRAD was issued.  It has no effect, however, on INA 212(a)(2)(A)(i)(II) "2A2" ineligibility since INA 241(a)(2)(B) specifically exempted convictions for violations of drug laws from eligibility for a JRAD.  Also, JRADs only affect convictions within the U.S. judicial system; JRADs do not apply to convictions in foreign courts.

(5)  (U) Conviction While a U.S. Citizen:

      (U) You must submit all cases involving the conviction of an applicant while he or she was a citizen of the United States to CA/VO/L/A for an advisory opinion.  (See 9 FAM 302.3-2(C).)

h. (U) Pardons Relating To Convictions: 

(1)  (U) U.S. Pardons:  INA 237(a)(2)(A)(vi) provides that certain U.S. pardons remove deportability for U.S. convictions.  Matter of H--,6 I. & N. Dec. 90 (BIA 1954), holds that such pardons also remove ineligibility under INA 212(a)(2)(A)(i)(I).  Generally, pardons that remove an INA 212(a)(2)(A)(i)(I) ineligibility must be pardons granted by the highest appropriate executive authority such as the President, State Governor, or other person specified in 22 CFR 40.21(a)(5).  A legislative pardon alone will not remove the ineligibility.  A pardon granted by a mayor is acceptable if the mayor has been designated as the supreme pardoning authority under the relevant municipal ordinances.  A pardon will remove the INA 212(a)(2)(A)(i)(I) ineligibility only when it is full and unconditional.  Post must submit any case involving a pardon which bears limitations or restrictions to CA/VO/L/A for an advisory opinion.  (See 9 FAM 302.3-2(C).)  Pardons also do not affect other ineligibilities, for example, INA 212(a)(2)(C)(i), in the same way.

(2)  (U) Foreign Pardons:  Foreign pardons are not effective for immigration purposes.  As noted in 22 CFR 40.21(a)(5), "a legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(A)(i)(I)." 

i.  (U) Suspended Sentence, Probation, etc., Relating to Convictions:  An alien who has been convicted and whose sentence has been suspended or reduced, mitigated, or commuted; or who has been convicted and has been granted probation or parole or has otherwise been relieved in whole or in part of the penalty imposed, is nevertheless, considered to have been convicted for purposes of INA 212(a)(2)(A), even if the applicant's record has now been expunged (see 9 FAM 302.3-2(B)(3) paragraph c above).

j.  (U) Appeals Pertaining To Convictions:  For the purposes of adjudicating a visa application, a visa applicant has been “convicted” of an offense once the conviction is entered in the trial court.  It does not matter whether the applicant has filed a direct appeal of the conviction to a higher court, nor whether the appeal period has expired.  But a conviction no longer exists if the judgment of conviction has been vacated by the trial court on the merits, or overturned on appeal to a higher court.  If an applicant presents evidence that the conviction was vacated on the merits, or overturned on appeal, you must ensure that all convictions that would result in an ineligibility have been reversed.  You should note that having a conviction vacated on the merits or overturned on appeal is different than completing probation or other requirements of the original sentencing; it means that the court is reversing the original decision, due to an error as a matter of law that was the fault of the court. If you are uncertain whether all relevant charges were reversed on appeal, you may submit the case to CA/VO/L/A for an advisory opinion. 

k. (U) Vacating A Conviction:

(1)  To determine whether a judicial modification of a conviction, such as a vacatur, is effective for immigration purposes, you must determine whether the court modified or vacated the original conviction for substantive reasons (e.g., a legal or serious procedural defect) or for some other purpose, such as avoiding negative consequences of U.S. immigration laws.  Note, however, that as of March 31, 2010, a conviction vacated due to ineffective assistance of counsel based on failure of an alien's attorney to advise of the immigration consequences of pleading guilty to criminal charges should be treated as a substantive reason.  See Padilla v. Kentucky, 130 S. Ct. 1473 (2010) and Chaidez v. U.S., 133 S. Ct. 1103 (2013).

(2)  The vacating of a conviction on a writ of coram nobis eradicates the conviction for INA 212(a)(2)(A)(i)(I).  See Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970).  A writ of coram nobis is an order by a court of appeal back down to the lower court which rendered the original judgment requiring that lower court to consider certain facts not on the trial record which might have resulted in a different judgment if those facts had been known at the time of the original trial.

l.  (U) Absence Of Conviction In Nolle Prosequi Cases:  The grant of a new trial by a judge following a conviction, together with a dismissal of cause "nolle prosequi" (a decision not to proceed with a case), eradicates the conviction for INA 212(a)(2)(A) and (B) purposes.

9 FAM 302.3-2(B)(4)  (U) Admitting to Crimes Involving Moral Turpitude

(CT:VISA-558;   04-02-2018)

a. (U) Alien Admission To Crime Involving Moral Turpitude:  A finding of INA 212(a)(2)(A)(i) ineligibility requires either a conviction or an "admission." It is often difficult to obtain a legally-valid "admission" for purposes of INA 212(a)(2)(A)(i). In eliciting admissions from visa applicants for purposes of applying INA 212(a)(2)(A),you must observe carefully the following rules of procedure which have been imposed by judicial and Board of Immigration Appeals decisions:

(1)  (U) The crime, which the alien has admitted, must appear to constitute moral turpitude based on the statute.  It is not necessary for the alien to admit that the crime involves moral turpitude.

(2)  (U) Before the actual questioning, you must give the applicant an adequate definition of the crime, including all of the essential elements.  You must explain the definition to the applicant in terms he or she understands, making certain the explanation conforms carefully to the law of the jurisdiction where the offense is alleged to have been committed.

(3)  (U) You must give the applicant a full explanation of the purpose of the questioning.  The applicant must then be placed under oath and the proceedings must be recorded verbatim.

(4)  (U) The applicant must then admit all of the factual elements which constituted the crime.  See Matter of P--, 1 I. & N. Dec. 33 (BIA 1941).

(5)  (U) The applicant’s admission of the crime must be explicit, unequivocal and unqualified.  See Howes v. Tozer, 3 F.2d 849 (1st Cir. 1925)..

b. (U) Admissions Relating To Acquittals Or Dismissals:  In most cases, an admission by an alien is deemed ineffective with respect to a crime for which the alien has been tried and acquitted, or, for which, charges have been dismissed by a court.  However, whether a valid admission occurred is a separate legal question from whether a conviction exists.  If you encounter a case in which the applicant appears to have made a legally sufficient admission (satisfying all of the requirements described in paragraph a above), but was acquitted or the charges were dismissed, you should seek an AO from CA/VO/L/A. 

c.  (U) Failing To Prosecute Charges Concerning Offense:  The failure of the authorities to prosecute an alien who has been arrested will not prevent a finding of ineligibility based upon an admission by the applicant.

d. (U) Guilty Plea Without Conviction:  A plea of guilty that is subsequently withdrawn or overturned because the plea was not voluntary will not constitute an admission for immigration purposes.

e. (U) Official Confession Constituting Admission:  An official confession made in a prior hearing or to a police officer may constitute an admission if the statement meets the standards of these Notes.

f.  (U) Cases Involving Retraction Of Admission:  Once an admission has been made, attempts to retract it need not remove the basis of ineligibility.  However, you must evaluate the truthfulness of such an admission.  If you believe the admission to be true despite the alien’s retraction, a finding of inadmissibility is warranted.  Conversely, if you believe the retraction to be justifiable, the alien’s admission to a crime will have no effect on the case. 

g. (U) Coercing To Obtain Admission Prohibited:  You must not resort to threats or promises in an attempt to extract an admission from an alien.  Action that tends to induce an alien to make an admission may constitute entrapment, and any admission or confession obtained by such methods may have no legal force or effect.

h. (U) Admitting All Essential Elements:

(1)  (U) In each case, the reviewing consular officer must keep in mind the essential elements of the offense.  For example, the essential elements of the crime of perjury (which is an offense involving moral turpitude) as defined in 18 U.S.C. 1621 are:

(a)  (U) The taking of an oath;

(b)  (U) Duly administered by a competent authority;

(c)  (U) In a case in which an oath is required by law;

(d)  (U) A false statement;

(e)  (U) Knowingly or willfully made; and

(f)   (U) Regarding a material matter.

(2)  (U) To legally constitute the admission of the commission of the crime of perjury in the example given above, an alien must fully, completely, and unequivocally admit elements (a), (d), and (e).  Elements (b), (c), and (f) are primarily questions of law which the alien is not required to admit but which you must find to exist to constitute the crime of perjury.

i.  (U) Quality Of Admission:  In any case where an admission is considered independent of any other evidence, you must develop that admission to a point where there is no reasonable doubt that the alien committed the crime in question.  (See 9 FAM 302.3-2(B)(4) paragraph a).

9 FAM 302.3-2(B)(5)  (U) Determining Whether a Statute Is a Crime Involving Moral Turpitude

(CT:VISA-558;   04-02-2018)

a. (U) Provisions Of Law Defining Particular Offense:  Where the record clearly shows the conviction to be predicated on one specific provision of law, whose terms embrace only acts that are offenses involving moral turpitude, that supports a conclusion that the conviction was for a crime that involves moral turpitude.  The statutory definition of the offense will determine whether the conviction involves moral turpitude.  Each separate provision of law defining an offense must be read in conjunction with such other provisions of law as are pertinent to its interpretation.

b. (U) Divisible Statutes Under U.S. And Foreign Law:

(1)  (U) If the provision of law on which a conviction is predicated has multiple sections, only some of which involve moral turpitude, you must evaluate the nature of the act to determine if the conviction was predicated on the section of the statute involving moral turpitude.  If the divisible statute in question is part of the law of one of the U.S. states, you may only examine the charge, plea, verdict, and sentence in assessing the presence of moral turpitude in the certain act for which the conviction was obtained.

(2)  (U) If the statute in question is a foreign law, you may assess the presence of moral turpitude in the act for which conviction has been obtained by reference to any part of the record or from admissions of the alien.  The alien must provide you with copies of any relevant laws that will allow you to make this determination. See 9 FAM 302.3-2(C), below.

9 FAM 302.3-2(B)(6)  (U) The Sentencing Exception

(CT:VISA-558;   04-02-2018)

a. (U) Provisions Of INA 212(a)(2)(A)(ii)(II)A conviction or admission to the commission of a crime of moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i)(I) if the sentencing exception (also known as the petty offense exception) applies.  The sentencing exception applies if the following conditions have been met:

(1)  (U) The applicant has been convicted of or has admitted to the commission of only one crime involving moral turpitude; and

(2)  (U) The maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed, see 9 FAM 302.2-2(B)(4) did not exceed imprisonment for one year; and

(3)  (U) If the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of six months.

b. (U) Applying The Sentencing Exception:  The language that the alien was not sentenced to a term of imprisonment in excess of six months refers to how long the alien was originally sentenced for, regardless of the extent to which the sentence was ultimately executed.  The “term of imprisonment” that you need to analyze constitutes the specific sentence meted out by the court prior to the imposition of any suspension.  For example, if a court imposes a sentence of nine months of imprisonment, but suspends all nine months and imposes two years of probation, the alien cannot benefit from the sentencing exception because the nine months term of imprisonment exceeds the statutory six months maximum.  Because you will need to analyze what sentence was originally handed down by the court, you may require that the applicant provide you with a copy of the sentencing provisions that accompany the statute under which he or she was convicted, as well as the court records which show what the original sentence was. See 9 FAM 302.3-2(C).

c.  (U) Applicability Of Law, Foreign Or Domestic, Relevant To Crime:  In assessing the applicability of this provision to an applicant who has admitted the commission of acts constituting a crime of moral turpitude (rather than being convicted), it is necessary only to look to the law, foreign or domestic, of the jurisdiction where the acts were committed.  It is not necessary to refer to federal or other U.S. standards to distinguish between felonies and misdemeanors.

d. (U) Early Release, Parole:  An applicant whose imposed sentence exceeds imprisonment for a period of six months cannot receive consideration under the sentencing exception even though the applicant was released early on parole or for good behavior.  (See 9 FAM 302.3-2(B)(6) paragraph b above.)

e. (U) Applying the Sentencing Exception:  Since the sentencing exception is to be applied retrospectively as well as prospectively, aliens previously found to be inadmissible under INA 212(a)(2)(A)(i)(I) might no longer be inadmissible under the terms of a statute if that statute is amended or changed.  All visa applications, therefore, must be assessed under the current statute without regard to any previous finding(s) of inadmissibility.

f.  (U) Distinguishing Between Single Offense And Single Conviction:  The INA language requires that the sentencing exception is applicable only if the alien has committed only one crime involving moral turpitude.  You must determine, as a matter of fact, whether despite the fact that there is a single conviction, the alien may have committed more than one crime involving moral turpitude.

(1)  (U) Multiple Counts:  An alien convicted on two counts involving moral turpitude in one indictment is ineligible for the sentencing exception even though only one conviction exists and the two offenses constituted a single scheme of criminal misconduct.

(2)  (U) Relevant Facts:  In Matter of S-R-, 7 I. & N. Dec. 495 (BIA 1957) and Matter of De M-., 9 I. & N. Dec. 218 (BIA 1961), it was held that when an alien’s conviction has been expunged under a state expungement proceeding, you may use the conviction as evidence that the alien committed more than one crime of moral turpitude and is therefore ineligible for relief under the sentencing exception.

9 FAM 302.3-2(B)(7)  (U) The Minor Exception

(CT:VISA-558;   04-02-2018)

a. (U) Provisions of INA 212(a)(2)(A)(ii)(I):  A conviction or admission of  a crime involving moral turpitude will not serve as the basis of ineligibility under INA 212(a)(2)(A)(i)(I), if the following conditions have been met:

(1)  (U) The crime was committed when the alien was under 18 years of age; and

(2)  (U) The crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for a visa or other documentation and the date of application for admission to the United States.

b. (U) More Than One Crime:  In some instances, court records in a case might show that an alien under the age of 18 years had committed more than one crime involving moral turpitude although only one conviction resulted.  In such a case, the alien is ineligible for the minor exception and remains ineligible under INA 212(a)(2)(A)(i)(I).

c.  (U) Conviction When Applicant Was Over 18It does not matter if the conviction occurred when the applicant was over the age of 18, as long as the relevant crime was committed when the applicant was under the age of 18.

d. (U) Confirm Existence of a ConvictionBefore applying the minor exception for a crime involving moral turpitude , you should first consider whether the offense was not a crime, but in fact a "juvenile delinquency." See 9 FAM 302.3-2(B)(8) below.

9 FAM 302.3-2(B)(8)  (U) Juvenile Delinquency

(CT:VISA-558;   04-02-2018)

a. (U) Definition:  The Federal Juvenile Delinquency Act (FJDA) defines a juvenile as a “person who has not attained his 18th birthday” and defines juvenile delinquency as “the violation of a law of the United States committed by a person prior to his or her 18th birthday which might have been considered a crime if committed by an adult.”

b. (U) While the FJDA may sound similar to the minor exception explained at 9 FAM 302.3-2(B)(7), it provides a distinct legal criteria that you must consider in determining whether a conviction of a crime exists for immigration purposes. In short, the FJDA requires that certain offenses committed by minors will be treated as a "juvenile delinquency" rather than a crime.  As such, someone convicted for an offense of juvenile delinquency cannot be considered to have been convicted for a crime involving moral turpitude.

c.  (U) Using U.S. Standards:  A foreign conviction based on conduct which would constitute a juvenile delinquency under U.S. law, however it was treated by the foreign court, is not a conviction for a “crime” for the purpose of INA 212(a)(2)(A)(i) and, accordingly, may not serve as the basis for a finding of inadmissibility under INA 212(a)(2)(A)(i)(I).  If you encounter a case where you believe that a foreign statute would constitute a juvenile delinquency under U.S. law, you should submit an AO to CA/VO/L/A.

d. (U) Controlling Legislation:  The standards embodied in the Federal Juvenile Delinquency Act (FJDA), as amended, govern whether an offense is considered a juvenile delinquency or a crime by U.S. standards. The FJDA, set forth in 18 U.S.C. 5031, was amended by the Juvenile Justice and Delinquency Prevention Act of 1974 (Public Law 93-415) and the Comprehensive Crime Control Act of 1984 (Public Law 98-473).

e. (U) Two Classes Of Juvenile Delinquents:  The Federal Juvenile Delinquency Act (FJDA) differentiates between two classes of juvenile delinquents.  Therefore, each must be analyzed differently for the purposes of INA 212(a)(2)(A)(i)(I).

(1)  (U) Under Age 15:  Juveniles who were under the age of 15 at the time of commission of acts constituting a juvenile delinquency, are not to be considered as having been convicted of a crime.  Therefore, no alien may be found inadmissible under INA 212(a)(2)(A)(i)(I) for any juvenile delinquency committed prior to the alien’s 15th birthday.

(2)  (U) Between Ages 15 and 18:  Juveniles between the ages of 15 and 18 at the time of commission of an offense will not be considered to have committed a crime for purposes of INA 212(a)(2)(A)(i)(I) unless they were tried and convicted as an adult for a felony involving violence.  A felony is defined in 18 U.S.C. 3559(a) or 18 U.S.C. 3156(a) as an offense punishable by death or imprisonment for a term exceeding one year.  A crime of violence is defined in 18 U.S.C. 16 as:

(a)  (U) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(b)  (U) Any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

f.  (U) Juveniles Demonstrating Patterns Of Criminal Behavior:  Any case in which an alien’s misconduct as a juvenile over a period of time has demonstrated a pattern of criminal behavior must be referred to the panel physician for a possible finding of inadmissibility under INA 212(a)(1).

9 FAM 302.3-2(B)(9)  (U) Political Offenses

(CT:VISA-352;   04-24-2017)

a. (U) 22 CFR 40.21(a) states that the term political offenses includes “offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.”  This regulation incorporates language from the legislative history of the 1952 Act, and therefore reflects to some extent the original Congressional intent in adopting the political offense exemption.  Based on this regulation, most political offense exemptions will involve cases where you determined that the alien was not guilty of the charges but was wrongly prosecuted because of political repression against racial, religious, or political minorities.

b. (U) The imposition of a cruel or unusual punishment, or of a punishment which is clearly disproportionate to the offense, can also be relevant to this consideration when there is evidence that the applicant was innocent of the charges.  Absent evidence of political motivation for a wrongful prosecution, you cannot look behind a conviction to determine whether the applicant was guilty of the offense for purposes of determining INA 212(a)(2)(A)(i)(I) inadmissibility, although evidence of a wrongful conviction can be relevant to waiver considerations.  The mere fact that an alien is or was a member of a racial, religious, or political minority shall not be considered as sufficient in itself to warrant a conclusion that the crime for which the alien was convicted was purely a political offense.

c.  (U) It has been generally considered that, in the extradition context, the crimes of espionage, treason and sedition are “pure” political offenses.  Convictions for these crimes will generally be eligible for the political offense exemption.

d. (U) You must submit an AO where there is any indication that the offense for which the alien was convicted was of a political nature, or prosecution and therefore was politically motivated.

e. (U) Many offenses that are political in nature do not involve moral turpitude.  If the offense does not involve moral turpitude or the provisions of INA 212(a)(2)(B) (multiple criminal convictions), the applicant is not ineligible and it is not necessary to determine whether the offense is political in nature.  Moreover, the Board of Immigration Appeals has determined that convictions for crimes that are not crimes in the United States will not be recognized for U.S. immigration purposes.  Therefore, many offenses with political implications such as illegal political campaigning or labor organizing will not result in immigration consequences because they do not constitute crimes in the United States.

9 FAM 302.3-2(B)(10)  (U)  Convicted War Criminals

(CT:VISA-558;   04-02-2018)

(U) See 9 FAM 302.7-8(B)(4) and 9 FAM 302.7-4(B)(1) for cases of persons convicted of war crimes.

9 FAM 302.3-2(C)  (U) Advisory Opinions

(CT:VISA-558;   04-02-2018)

a. (U) In General:  When an advisory opinion is required and the case involves a possible INA 212(a)(2)(A)(i) ineligibility due to a conviction, before submitting an AO, you should request that the applicant provide you records of:

(1)  Unavailable   

(2)  Unavailable   

(3)  Unavailable   

(4)  Unavailable   

(5)  Unavailable   

b. Unavailable   

9 FAM 302.3-2(D)  (U) Waivers

9 FAM 302.3-2(D)(1)  (U) Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

a. (U) Principal Alien:  An immigrant alien who is inadmissible under INA 212(a)(2)(A)(i)(I) is legally eligible to apply for a waiver of inadmissibility under INA 212(h) if it is established to the satisfaction of the Secretary of Homeland Security (DHS) that:

(1)  (U) The activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa for admission, or adjustment of status; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or

(2)  (U) In certain cases involving close relatives (see 9 FAM 302.3-2(D)(1) paragraph b); or

(3)  (U) If the alien is a Violence Against Women’s Act (VAWA) self-petitioner.

b. (U) Certain Relatives Of U.S. Citizens Or Legal Permanent Residents (LPRs):  An alien immigrant who is the spouse, parent, son, or daughter of a U.S. citizen or an alien lawfully admitted for permanent residence in the United States legally may apply for a waiver under INA 212(h) (see also 9 FAM 302.3-2(D)(1)) if:

(1)  (U) It is established of the Secretary of Homeland Security‘s (DHS) satisfaction that the alien’s denial of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son, or daughter; and

(2)  (U) The Secretary of Homeland Security (DHS) has consented to the alien’s applying or reapplying for a visa for admission or adjustment of status to the United States.

c.  (U) Evidence Of Eligibility To Apply For A Waiver:  When the court records or statutes leave doubt concerning an alien’s eligibility for a waiver, you must ensure that you have obtained complete records and copies of all relevant portions of the statute under which the conviction was obtained are assembled, as well as any available commentary by authorities, prior judicial holdings and the like, along with translations into English, and scan these documents into the CCD.  (See 9 FAM 302.3-2(D)(1) for waiver procedures.)  Because DHS has exclusive authority for approving waivers, any question concerning waiver eligibility or waiver procedures/processing should be directed to DHS for resolution.

d. (U) Procedures:

(1)  (U) Aliens Submit Waiver Requests Directly to The Department of Homeland Security:  Immigrant visa waiver applications are submitted directly to DHS by the alien visa applicant without any recommendation or other action from the Department.  Applicants file their Form I-601 directly with USCIS per the Form I-601 instructions.  To ensure that the original finding of ineligibility is fully in accord with both law and regulations, you must carefully review cases of aliens who have been found inadmissible under INA 212(a)(2)(A)(i)(I), (B), (D), or (E).

(2)  (U) Form I-601, Application for Waiver of Grounds of Inadmissibility:  You must interview the alien and the alien’s spouse or other qualifying relatives, if appropriate, and make every effort to identify all grounds of ineligibility at the time of the formal refusal of the visa.  Consular officers must clearly describe the reasoning behind a refusal in the case notes.  If the applicant's ineligibilities can be waived, or if the applicant asks about the potential for a waiver, you should inform the applicant of Form I-601, Application for Waiver of Grounds of Inadmissibility and that the applicant can contact DHS with any questions about waivers.

(3)  (U) Executing Form I-601:  Post should not assist applicants with completing Form I-601.  Applicants should file their Form I-601 with USCIS according to the USCIS instructions.  You must instruct the applicant to direct all Form I-601 inquiries to USCIS.

(4)  (U) If a waiver is granted by USCIS, DHS will notify the relevant consular section via an encrypted spreadsheet.  Upon its receipt you should:

(a)  (U) Note the waiver decision in the case notes with the following standard case note:  Per USCIS/NSC notification received (date), (grounds of ineligibility) waived for (NVC case number).  Spreadsheet POST_DD_MM_YYYY_HR_MIN.csv; and

(b)  (U) Make a notation regarding the waiver on the Online IV Application Report for the applicant's Form DS-260, Online Application for Immigrant Visa and Alien Registration using the “Add Remarks” button at the top of the report and attach the notification to the other supporting documents contained in the packet.

(c)  (U) Consular sections will not receive a physical copy of the approved waiver of inadmissibility form from USCIS.  There is no need to scan a record of approval into the case.  CBP officers may verify the waiver of inadmissibility decision through DHS’s system Computer Linked Application Information Management System (CLAIMS) as necessary as part of the inspections process.

(5)  (U) Validity of Waivers:  DHS regulations at 8 CFR 212.7(a)(4) provide that a waiver granted under INA 212(h) must apply only to those grounds of inadmissibility and to those crimes, events, or incidents specified in the alien's application for a waiver.  Once granted, the waiver will be valid indefinitely, even if the recipient of the waiver later abandons or otherwise loses lawful permanent resident (LPR) status.  Therefore a subsequent visa may be issued to an alien who was previously granted such a waiver, since the ineligibility was permanently waived.  However, in the case where  a waiver is granted to a conditional legal permanent resident, and that resident's status is eventually terminated, the waiver will automatically also terminate when the conditional resident status terminates.

(6)  (U) Authority for Issuing Waivers is Discretionary:  The authority exercised by DHS under INA 212(h) is discretionary.  In cases where an eligible alien insists upon preceding an ineligible relative to the United States, you must ask the alien to sign a statement that he or she has been informed that an exercise of DHS’s discretionary authority cannot be guaranteed.  (See 9 FAM 504.9-5.)  You must not suggest the separation of a family in order to place the ineligible alien in a position to apply for a waiver of the grounds of inadmissibility.

9 FAM 302.3-2(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

(U) For those who do not fall under any of the exceptions to INA 212(a)(2)(A)(i)(I) ineligibility.  INA 212(d)(3)(A) waivers are legally available. As with any INA 212(a)(d)(3)(A) waiver, the Department of Homeland Security cannot approve the waiver request unless it is accompanied by a favorable recommendation from either the consular officer or the Secretary of State.  You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests;

(4)  (U) If you do not wish to recommend a waiver and the applicant or their representative wishes to pursue the case further then you must submit the case to the Department by AO through the NIV system stating that post does not wish to recommend a waiver, and explaining which of the above factors post considered in reaching its decision.

9 FAM 302.3-2(E)  Unavailable   

9 FAM 302.3-2(E)(1)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

9 FAM 302.2-2(E)(2)  Unavailable   

(CT:VISA-558;   04-02-2018)

Unavailable   

9 FAM 302.3-3  (U) Crimes Involving Controlled Substance Violations - INA 212(a)(2)(A)(i)(II)

9 FAM 302.3-3(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) INA Section 212(a)(2)(A)(i)(II) renders ineligible any alien with a conviction for a (or who has provided a legally-valid admission to) violation of, or conspiracy to violate, any law of a state, the United States, or a foreign country relating to a controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802).  Note that whether or not a controlled substance is legal under a state or foreign law is not relevant to its illegality under U.S. federal law.

9 FAM 302.3-3(B)  (U) Application

(CT:VISA-239;   10-28-2016)

(U) For guidance on how to apply INA Section 212(a)(2)(A)(i)(II) see 9 FAM 302.4-2.

9 FAM 302.3-4  (U) Multiple Criminal Convictions - INA 212(a)(2)(B)

9 FAM 302.3-4(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) INA 212(a)(2)(B) provides that any alien convicted of two or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement were five years or more is ineligible.

9 FAM 302.3-4(B)  (U) Application

9 FAM 302.3-4(B)(1)  (U) Cases Involving An Alien Convicted of Both a Crime Involving Moral Turpitude and a Crime That Does Not Involve Moral Turpitude.

(CT:VISA-558;   04-02-2018)

(U)  A case may arise in which the court records indicate that an alien was previously convicted both of one or more crime(s) involving moral turpitude and one or more crime(s) that did not involve moral turpitude. For example, if an alien was sentenced to imprisonment for four years for committing rape, a crime involving moral turpitude, and also sentenced to imprisonment for one year for public drunkenness, a crime not involving moral turpitude, then, that alien would be inadmissible under both INA 212(a)(2)(A)(i) and (2)(B).

9 FAM 302.3-4(B)(2)  (U) Effects of Suspended Sentence, Foreign Pardon, or Amnesty Decree

(CT:VISA-558;   04-02-2018)

a. (U) A sentence to confinement, the execution of which has been suspended by a court of competent jurisdiction, is still a sentence that is considered to have been “actually imposed” within the meaning of INA 212(a)(2)(B) (Matter of Castro, 19 I&N 692 (BIA 1988)).  Hence, if an alien has been convicted of committing two or more offenses for which the aggregate sentences to confinement were five years or more, but the court suspended the execution of the sentence in whole or in part so as to reduce the actual term of confinement to less than 5 years, the alien would still be ineligible under INA 212(a)(2)(B).

b. (U) If a court of competent jurisdiction suspends the imposition of sentence, (i.e., chooses some other form of punishment, such as probation or community service), any period of confinement proscribed by law for the crime in question for which the applicant was convicted is not within the meaning of INA 212(a)(2)(B) since it was never “actually imposed.”

c.  (U) A further distinction must be made between a sentence suspended by the court and, on the other hand, a pardon or general amnesty.  An alien who has been convicted of two or more offenses for which the aggregate sentences to confinement were five years or more but which are later extinguished by reason of the granting of an unconditional foreign pardon or amnesty decree of any kind, whether granted at the conclusion of the original trial, in appellate proceedings, or in any other type of proceedings, would still be inadmissible under INA 212(a)(2)(B).  The fact that the alien received a pardon or decree which meant that he or she did not have to serve all of his or her sentence to confinement would not alter the fact that the original sentence should be used in determining the aggregate sentences to confinement which were actually imposed.

9 FAM 302.3-4(B)(3)  (U) Effect of One Conviction for Two or More Offenses

(CT:VISA-558;   04-02-2018)

(U) In order to be ineligible under INA 212(a)(2)(B), it is not necessary to establish that an alien has been convicted on two separate and distinct occasions.  To illustrate this by using an example, let us imagine that there was a case where a record of conviction showed that an alien was convicted on four separate and distinct counts of the U.S. Internal Revenue laws (1934 Edition):  Section 1162 (Registry of Stills); Section 1170 (Premises Prohibited for Distilling); Section 1184 (Distilling Without Posting Bond); and Section 1185 (Distilling Mash).  In this hypothetical fact pattern, let us further say that a sentence to imprisonment of two years was imposed on each of the four counts listed in the indictment, for a total of eight years.  Although there was only one conviction, and although the offenses were predicated on a single scheme of misconduct, the fact that there was a series of four criminal acts would mean that the alien would be ineligible under INA 212(a)(2)(B).

9 FAM 302.3-4(B)(4)  (U) Political Offenses

(CT:VISA-239;   10-28-2016)

(U) In connection with the term “purely political offenses” as used in INA 212(a)(2)(B), see 9 FAM 302.3-2(B)(9).  Requests for advisory opinions should be submitted in accordance with 9 FAM 302.3-2(C).

9 FAM 302.3-4(B)(5)  (U) Two Classes of Juvenile Delinquents

(CT:VISA-558;   04-02-2018)

(U) The law differentiates between two classes of juvenile delinquents: those under the age of fifteen at the time of commission of the act(s) underlying his or her delinquency, and those between the ages of fifteen and eighteen at the time of commission of the underlying offense(s).

(1)  (U) A juvenile whose offense was committed before the alien’s fifteenth birthday is not inadmissible under INA 212(a)(2)(B) for that offense, regardless of the nature of the offense, the type of court which heard the case, or whether the alien was treated as a juvenile or as an adult.

(2)  (U) A juvenile whose offense was committed between the ages of fifteen and eighteen will be ineligible under INA 212(a)(2)(B) if :

(a)  (U) The alien was tried and convicted as an adult; and

(b)  (U) The alien was convicted of a violent felony as defined in sections 18 U.S.C. 3559(a), 18 U.S.C. 3156(a), and of 18 U.S.C. 16 (Title 18 of the United State Code Section 16).  (See 9 FAM 302.3-2(B)(8).)

(3)  (U) Juvenile delinquency is not a crime for the purpose and may not serve as the basis for a finding of INA 212(a)(2)(B) ineligibility..  (See 9 FAM 302.3-2(B)(8).)

9 FAM 302.3-4(C)  (U) Advisory Opinions

(CT:VISA-239;   10-28-2016)

(U) An AO is not required for a potential INA 212(a)(2)(B) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.3-4(D)  (U) Waivers

9 FAM 302.3-4(D)(1)  (U) Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

(U) An immigrant visa applicant who is found to be ineligible under INA 212(a)(2)(B) and is the spouse, parent, son, or daughter of a U.S. citizen or of a  legal permanent resident alien may apply for a waiver of ineligibility with DHS. (See 9 FAM 302.3-2(D)(1) for detailed waiver information and procedures.)  If there are any inquiries about immigrant visa waivers, the visa applicant should be directed to contact DHS directly.

9 FAM 302.3-4(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

(U) An INA 212(d)(3)(A) waiver is available for a nonimmigrant visa applicant who is found to be ineligible under INA 212(a)(2)(B) if the consular officer or the Secretary of State chooses to recommend that waiver.  You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

(4)  (U) If you do not wish to recommend a non-immigrant visa waiver, and the applicant or his or her representative insists on pursuing the waiver request, you should submit an AO to CA/VO/L/A.

9 FAM 302.3-4(E)  Unavailable   

9 FAM 302.3-4(E)(1)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

9 FAM 302.2-4(E)(2)  Unavailable   

(CT:VISA-558;   04-02-2018)

Unavailable   

9 FAM 302.3-5  (U) Controlled Substance Trafficking - INA 212(a)(2)(C)

9 FAM 302.3-5(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) INA Section 212(a)(2)(C) renders ineligible any alien whom you know or have reason to believe is or has been an illicit trafficker in any controlled substances, or who assisted, conspired, or colluded with others in the illicit trafficking in any controlled substance or chemical, or any endeavored to do so.  This ineligibility also applies to the spouse, son, and daughter of the trafficker if they obtained any financial or other benefit from the illicit activity within the past five years and knew or should have known that the benefit was derived from illicit activity.

9 FAM 302.3-5(B)  (U) Application

(CT:VISA-558;   04-02-2018)

(U) For guidance on how to apply INA 212(a)(2)(C), see 9 FAM 302.4-3.

9 FAM 302.3-6  (U) Prostitution and Commercialized Vice - INA 212(a)(2)(D)

9 FAM 302.3-6(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) INA 212(a)(2)(D) provides three separate sections  for a visa ineligibility for prostitution and commercialized vice.  Each of the three sections is explained in more detail at 9 FAM 302.3-6(A)(1)-(3) below.

9 FAM 302.3-6(A)(1)  (U) Prostitution - INA 212(a)(2)(D)(i)

(CT:VISA-239;   10-28-2016)

(U) INA 212(a)(2)(D)(i) renders ineligible any alien who “is coming to the United States to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status."

9 FAM 302.3-6(A)(2)  (U) Procuring Prostitution - INA 212(a)(2)(D)(ii)

(CT:VISA-239;   10-28-2016)

(U) INA 212(a)(2)(D)(ii) renders ineligible any alien who “directly or indirectly procures or attempts to procure, or (within 10 years of the date of application for  visa, admission, 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.”

9 FAM 302.3-6(A)(3)  (U) Commercialized Vice - INA 212(a)(2)(D)(iii)

(CT:VISA-239;   10-28-2016)

(U) INA 212(a)(2)(D)(iii) renders ineligible any alien who “is coming to the United States to engage in any other unlawful commercialized vice, whether or not related to prostitution.”

9 FAM 302.3-6(B)  (U) Application

9 FAM 302.3-6(B)(1)  (U) Definition of Prostitution

(CT:VISA-558;   04-02-2018)

(U) “Prostitution” means engaging in promiscuous sexual intercourse for hire.  A conviction is not necessary for a finding that an applicant engaged in prostitution.  However, a finding that someone has “engaged” in prostitution must be based on a regular pattern of “prostitution” for financial gain – not casual or isolated acts. An individual can be found ineligible under INA 212(a)(2)(D)(i) for engaging in prostitution even in a jurisdiction where prostitution is not illegal so long as it involves  a regular pattern of prostitution for financial gain.  INA 212(a)(2)(D)(i) does not apply to a “john” or someone who hired a prostitute. However, in cases where a conviction exists, consular officers should consider whether INA 212(a)(2)(A)(i) may apply.

9 FAM 302.3-6(B)(2)  (U) Conviction Under Statute Defining Prostitution

(CT:VISA-558;   04-02-2018)

(U) A conviction under a statute which precisely defines prostitution will not render an alien ineligible  under INA 212(a)(2)(D) unless the record of conviction shows or it is otherwise reasonably established that the alien had engaged in prostitution.  On the other hand, such a conviction may trigger a finding of ineligibility under INA 212(a)(2)(A)(i)(I) (because prostitution is a crime involving moral turpitude.)

9 FAM 302.3-6(B)(3)  (U) Convictions Under a Broad Statute Encompassing Several Crimes

(CT:VISA-558;   04-02-2018)

(U) A person might be convicted under a statute so broad in content as to encompass within it, for example, the crimes of vagrancy, disorderly conduct, and loitering for the purpose of prostitution.  Such a conviction may not make the alien ineligible under INA 212(a)(2)(A)(i)(I) because of the divisibility of the statute. However, the facts contained in the record might prompt you to question the alien along lines that would allow you to make a determination of whether the alien is ineligible under INA 212(a)(2)(D)..

9 FAM 302.3-6(B)(4)  (U) Definition of the term “Procure” Prostitution

(CT:VISA-558;   04-02-2018)

(U) INA 212(a)(2)(D)(ii) does not apply to a single act of soliciting prostitution.  The Board of Immigration Appeals has noted that Congress, in INA 21(a)(2)(D)(ii), chose to use the term “procure” prostitution; not “solicit” prostitution.  A person who “procures” prostitution is defined as a person “who receives money to obtain a prostitute for another person.”

9 FAM 302.3-6(B)(5)  (U) Definition of Unlawful Commercialized Vice

(CT:VISA-558;   04-02-2018)

(U) Commercialized vice applies to activity connected to a “moral failing,” which the Board of Immigration Appeals has said can be prostitution, gambling and addiction to narcotics.  It does not apply to “loan sharking,” and other forms of commercial extortion.

9 FAM 302.3-6(B)(6)  (U) 10 Year Statute of Limitation on Prostitution But Not Commercialized Vice

(CT:VISA-558;   04-02-2018)

(U) If the visa applicant has not engaged in prostitution; or has not attempted to procure (or has not procured persons for) prostitution; or has not received proceeds from prostitution within ten years preceding the date of application for a visa, then INA 212(a)(2)(D) does not apply.  It should be noted, however, that INA 212(a)(2)(D)(iii) does not extend the ten year statute of limitations to aliens who have engaged in other unlawful commercialized vice whether or not that activity was related to prostitution.

9 FAM 302.3-6(C)  (U) Advisory Opinions

(CT:VISA-239;   10-28-2016)

(U) An AO is not required for a potential INA 212(a)(2)(D) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.3-6(D)  (U) Waivers

9 FAM 302.3-6(D)(1)  (U) Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

(U) An alien who is inadmissible under INA 212(a)(2)(D) and is the spouse, parent, son, or daughter of a U.S. citizen or of a permanent resident alien may apply for a waiver of ineligibility with DHS. (See 9 FAM 302.3-2(D)(1) for detailed waiver information and procedures.) If there are any inquiries about immigrant visa waivers, the visa applicant should be directed to contact DHS directly.  (See 9 FAM 302.3-2(C) for detailed waiver information and procedures.)

9 FAM 302.3-6(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

(U) An INA 212(d)(3)(A) waiver is available for an alien who is inadmissible under INA 212(a)(2)(D) if the consular officer or the Secretary of State chooses to recommend one. You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

      (U) Note: If you do not wish to recommend a non-immigrant visa waiver, and the applicant or his or her representative insists on pursuing the waiver request, you should submit an AO to CA/VO/L/A.

9 FAM 302.3-6(E)  Unavailable   

9 FAM 302.3-6(E)(1)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

Unavailable   

9 FAM 302.2-6(E)(2)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

Unavailable   

9 FAM 302.3-7  (U) Criminal Activity Where Immunity Asserted - INA 212(a)(2)(E)

9 FAM 302.3-7(A)  (U) Grounds

(CT:VISA-239;   10-28-2016)

(U) An alien is ineligible under INA 212(a)(2)(E) who has committed in the United States at any time a serious criminal offense (as defined in INA 101(h)), for whom immunity from criminal jurisdiction was exercised with respect to that offense, who as a consequence of the offense and exercise of immunity has departed from the United States, and who has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense.

9 FAM 302.3-7(B)  (U) Application

(CT:VISA-558;   04-02-2018)

a. (U) Determining Ineligibility: An alien is ineligible under INA 212(a)(2)(E) if:

(1)  (U) The alien has committed a serious criminal offense (as defined in INA 101(h)) at any time in the United States;

(2)  (U) The foreign mission or international organization exercised immunity from criminal jurisdiction on behalf of the alien and with respect to that offense;

(3)  (U) The alien has departed from the United States as a consequence of the offense and exercise of immunity; and

(4)  (U) The alien has not subsequently submitted fully to the jurisdiction of the court in the United States having jurisdiction with respect to that offense.

b. (U) You may not issue a visa to an individual who is found ineligible under INA 212(a)(2)(E)Applicants subject to INA 212(a)(2)(E) ineligibility may apply for a waiver of the ineligibility as authorized in INA 212(h).  For the procedure regarding a waiver for an immigrant visa applicant, see 9 FAM 302.3-2(D)(1).  (See also 9 FAM 302.3-7(D) regarding waivers of ineligibility under INA 212(a)(2)(E) in general.)

9 FAM 302.3-7(C)  (U) Advisory Opinions

(CT:VISA-558;   04-02-2018)

a. (U) An advisory opinion (AO) is not required for a potential INA 212(a)(2)(E) ineligibility, except as described below; however, if an applicant is subject to a P2E hit entered by the Department, you should reach out to your usual point of contact in CA/VO/L/A.  If you have a question about the interpretation or application of law or regulation you may request an AO from CA/VO/L/A.

b. (U) Prior to issuing an A, C-2, C-3, G or NATO visa to an applicant who would otherwise be ineligible under INA 212(a)(2)(E) if such applicant were applying for a visa other than an A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, or NATO-1 through NATO-6 nonimmigrant visa, you must submit an advisory opinion to CA/VO/L/A.

9 FAM 302.3-7(D)  (U) Waivers

9 FAM 302.3-7(D)(1)  (U)  Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

a. (U) General:  An INA 212(h) waiver is available for an immigrant visa applicant inadmissible under INA 212(a)(2)(E) if the activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application, the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; for applicants with a close family relationship (spouse, parent, son, or daughter) to a U.S. citizen or LPR, if, in the opinion of DHS, refusing the waiver would result in extreme hardship to the U.S. citizen or LPR; or the alien is a VAWA self-petitioner.  If the alien has any questions about filing a waiver for an immigrant visa, the alien should be directed to contact DHS directly.

b. (U) Limitation:  No waiver is available if the alien has committed murder or criminal acts involving torture, or conspiracy to commit either murder or criminal acts involving torture.

9 FAM 302.3-7(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

(U) An INA 212(d)(3)(A) waiver is available for a nonimmigrant visa applicant who is ineligible under INA 212(a)(2)(E).  You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

      (U) Note: If you do not wish to recommend a non-immigrant visa waiver, and the applicant or his or her representative insists on pursuing the waiver request, you should submit an AO to CA/VO/L/A.

9 FAM 302.3-7(E)  Unavailable   

9 FAM 302.3-7(E)(1)  Unavailable   

(CT:VISA-558;   04-02-2018)

Unavailable   

9 FAM 302.2-7(E)(2)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

9 FAM 302.3-8  (U) Human Traffickers - INA 212(a)(2)(H)

9 FAM 302.3-8(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) Under INA 212(a)(2)(H), an alien is ineligible if he or she:

(1)  (U) Commits or conspires to commit a human trafficking offense either inside or outside of the United States; or

(2)  (U) Knowingly aided, abetted, assisted, conspired, or colluded with such a trafficker in severe forms of trafficking in persons (see 9 FAM 302.3-8(B)(1) below); or

(3)  (U) Is the spouse, son, or daughter of an alien who has engaged in one of the above activities and has:

(a)  (U) Received a financial or other benefit from the principal alien's illicit activity within the five years prior to the visa application date; and

(b)  (U) Knew or reasonably should have known that the source of the benefit was illicit human trafficking activity.

9 FAM 302.3-8(B)  (U) Application

9 FAM 302.3-8(B)(1)  (U) Defining Severe Forms of Trafficking in Persons

(CT:VISA-558;   04-02-2018)

a. (U) An individual is ineligible  for having knowingly aided, abetted, assisted, conspired or colluded with a trafficker, only if the trafficker engaged in a "severe form of trafficking in persons," which is defined in 22 U.S.C. 7102(9) as follows:

(1)  (U) "Sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;" or

(2)  (U) "The recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery."

b. (U) "Sex trafficking" is defined at 22 U.S.C. 7102(10) as "the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act."

9 FAM 302.3-8(B)(2)  (U) Spouse, Son or Daughter Benefiting from Trafficking in Persons

(CT:VISA-558;   04-02-2018)

a. (U) Ineligibility under INA 212(a)(2)(H)(ii) does not require that the primary alien have applied for a visa or have been formally refused under INA 212(a)(2)(H)(i).  It only requires an assessment that if the alien spouse or parent were to apply for a visa he or she would be found ineligible under INA 212(a)(2)(H)(i).

b. (U) INA 212(a)(2)(H)(ii) only applies to spouses who are currently spouses of aliens who were found to be ineligible or would be found to be ineligible  under INA 212(a)(2)(H)(i).  It does not include those whose marriage has ended due to divorce or the death of the inadmissible alien.

c. (U) INA 212(a)(2)(H)(ii) does not apply to a son or daughter who was a child as defined by the INA (unmarried and under 21) at the time he or she received the benefit.  A son or daughter remains the son or daughter of an alien found ineligible  under INA 212(a)(2)(H)(i) even after the death of the ineligible alien parent. 

9 FAM 302.3-8(B)(3)  (U) A, C-2, C-3, G, and NATO Visa Applicants

(CT:VISA-352;   04-24-2017)

(U) Applicants for A-1, A-2, C-2, C-3, G-1, G-2, G-3, G-4, NATO-1 through NATO-4 and NATO-6 visas are not subject to this ground of ineligibility.

9 FAM 302.3-8(B)(4)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

9 FAM 302.3-8(C)  (U) Advisory Opinion

(CT:VISA-558;   04-02-2018)

a. (U) AO Required: If you suspect that an applicant is ineligible for a visa under this ground, you must request an Advisory Opinion (AO) from the Advisory Opinions Division in the Visa Office (CA/VO/L/A).

b. Unavailable   

(1)  Unavailable   

(2)  Unavailable   

(3)  Unavailable   

(4)  Unavailable   

9 FAM 302.3-8(D)  (U) Waivers

9 FAM 302.3-8(D)(1)  (U) Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

(U) There is no waiver available for immigrants found ineligible under INA 212(a)(2)(H).

9 FAM 302.3-8(D)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

(U) An INA 212(d)(3)(A) waiver is available for nonimmigrants found ineligible  under INA 212(a)(2)(H) if the consular officer or the Secretary of State chooses to recommend one.  You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

      (U) Note: If you do not wish to recommend a non-immigrant visa waiver, and the applicant or his or her representative insists on pursuing the waiver request, you should submit an AO to CA/VO/L/A.

9 FAM 302.3-8(E)  Unavailable   

9 FAM 302.3-8(E)(1)  Unavailable   

(CT:VISA-558;   04-02-2018)

Unavailable   

9 FAM 302.2-8(E)(2)  Unavailable   

(CT:VISA-239;   10-28-2016)

Unavailable   

9 FAM 302.3-9  (U) MONEY LAUNDERING - INA 212(a)(2)(I)

9 FAM 302.3-9(A)  (U) Grounds

(CT:VISA-558;   04-02-2018)

(U) INA 212(a)(2)(I) provides that an alien is ineligible for a visa if there is reason to believe the alien has engaged, is engaging, or seeks to enter the United States to engage in, money laundering, as described  in 18 U.S.C. 1956 or 18 U.S.C. 1957.  It also provides that any alien who you know is, or has been, a knowing aider, abettor, assistor, conspirator, or colluder with money launderers is ineligible. .

9 FAM 302.3-9(B)  (U) Application

9 FAM 302.3-9(B)(1)  (U) In General

(CT:VISA-558;   04-02-2018)

a. (U) In order to apply this ineligibility, you must articulate specific facts, relevant to the elements of the crime of money laundering as defined in 18 U.S.C. 1956 or 18 U.S.C. 1957.  These facts must provide a basis for “reason to believe,” as described in 9 FAM 302.4-3(B)(3), that the applicant has engaged, is engaged, or seeks to enter the United States to engage in money laundering or for knowing that  the applicant is or has been a knowing aider, abettor, assistor, conspirator, or colluder with money launderers.

b. (U) The federal money laundering statutes are complex, but they include four basic components.  To apply INA 212(a)(2)(I), your findings should include facts demonstrating:

(1) (U) that the applicant engaged in a transaction or transfer of money or property;

(2) (U) that the money or property involved in the transaction was derived from a "specified unlawful activity," which is broadly defined in 18 U.S.C. 1956(c)(7);

(3) (U) that the applicant knew the money or property was derived from some form of unlawful activity; and

(4)  (U) that the transaction was intended to promote a specified unlawful activity, to conceal the fact that the money or property was criminally derived, or to evade taxes or reporting requirements under state or federal law. 

    (U) Note: The Department may require additional factual findings, but the above elements are the general hallmarks of money laundering under 18 U.S.C. 1956 and 1957.  As noted in 9 FAM 302.3-9(B)(2) paragraph b, you should contact your attorney adviser in CA/VO/L/A to discuss whether your case may meet the requirements of INA 212(a)(2)(I). 

9 FAM 302.3-9(B)(2)  (U) Advisory Opinions

(CT:VISA-558;   04-02-2018)

a. (U) Advisory Opinion Mandatory:

(1)  (U) The two Federal money laundering statutes (18 U.S.C. 1956 or 18 U.S.C. 1957) on which ineligibility under INA 212(a)(2)(I) is based, are complex and incorporate, by reference, a large number of other criminal statutes.  Posts must submit all cases involving potential INA 212(a)(2)(I) ineligibilities to CA/VO/L/A, for an advisory opinion.

(2)  (U) The mandatory advisory opinion requirement is applicable when an alien applies for a visa so long as post has reason to believe the alien has engaged, is engaged in, or seeks to engage in, money laundering activity; or knows that the applicant is or has been a knowing aider, abettor, assistor, conspirator, or colluder with money launderers. 

b. Unavailable   

9 FAM 302.3-9(C)  (U) Waivers

9 FAM 302.3-9(C)(1)  (U) Waivers for Immigrants

(CT:VISA-558;   04-02-2018)

(U) There is no waiver available for immigrants found ineligible under INA 212(a)(2)(I).

9 FAM 302.3-9(C)(2)  (U) Waivers for Nonimmigrants

(CT:VISA-558;   04-02-2018)

An INA 212(d)(3)(A) waiver is available for nonimmigrants found ineligible  under INA 212(a)(2)(I).  You should consider the following factors, among others, when deciding whether to recommend a waiver:

(1)  (U) The recency and seriousness of the activity or condition causing the alien's inadmissibility;

(2)  (U) The reasons for the proposed travel to the United States;

(3)  (U) The positive or negative effect, if any, of the planned travel on U.S. public interests.

      (U) Note: If you do not wish to recommend a non-immigrant visa waiver, and the applicant or his or her representative insists on pursuing the waiver request, you should submit an AO to CA/VO/L/A.

9 FAM 302.3-9(D)  Unavailable   

9 FAM 302.3-9(D)(1)  Unavailable   

(CT:VISA-558;   04-02-2018)

Unavailable   

9 FAM 302.3-9(D)(2)  Unavailable   

(CT:VISA-465;   11-08-2017)

Unavailable