The alien is known or reasonably believed to be, or to have been, an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or to be or to have been a knowing aider, assister, abettor, conspirator, or colluder with others in the illicit trafficking in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

A waiver may be available for an alien who has been convicted of, or admits having committed, or admits committing acts which constitute the essential elements of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the U.S., or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).

To see if your foreign family member qualifies, contact an immigration attorney at 626-771-1078.

The alien has been convicted of, or admits having committed, or admits committing acts which constitute the essential elements of a crime involving moral turpitude (CIMT). An alien cannot be found inadmissible based on admission with respect to a crime for which the alien has been tried and acquitted, or, for which, charges have been dismissed by a court.

INA 212(a)(2)(A)(ii) describes a few exceptions to the general rule that a crime involving moral turpitude makes an alien inadmissible, as noted below.

1. Purely political offense: Defined in DOS regulations at 22 CFR 20.41(a)(6). Includes offenses that resulted in a conviction obviously based on fabricated charges or predicated on repressive measures against racial, religious, or political minorities.

2. INA 212(a)(2)(A)(ii)(I): Only 1 CIMT was committed, and The alien was under age 18 at the time, and The CIMT was committed and the alien was released (if confined) more than 5 years before the date of application for a visa, admission, or adjustment of status.

3.  INA 212(a)(2)(A)(ii)(II): Only 1 CIMT was committed, and The maximum penalty possible did not exceed 1 year, and If convicted, the sentence imposed did not exceed 6 months (regardless of the time actually served).

If additional information is required in order to adjudicate a Form I-601, a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) may be issued to an applicant as a matter of discretion.  

• An RFE may be issued to request missing initial or additional evidence from an applicant; the timeframe for response to an RFE cannot exceed 12 weeks.

An RFE or NOID is not necessary in every case prior to adjudication, and a USCIS  adjudicator may approve or deny an I-601 without first issuing a  RFE or NOID unless required pursuant to 8 CFR 103.2(b)(16).

If you’ve been denied a K-1 fiancee or K-3 spousal visa, contact an immigration attorney at 626-771-1078 or visit www.myfianceevisa.com for more information.

The adjudicator makes an initial  determination that the applicant is inadmissible and identifies all inadmissibility grounds that apply; the adjudicator should not assume that the Consular Officer correctly identified the inadmissibility grounds. If additional inadmissibility grounds are identified, they should be noted in the decision.

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Normally, DOS obtains electronic fingerprints from the applicant, forwards them to the FBI, receives the FBI response and includes it in the waiver packet provided to USCIS for adjudication.

If the FBI response indicates a crime involving moral turpitude, the RAP sheet should also be included in the waiver packet along with court dispositions or an explanation as to why court dispositions are not available, per guidance in the FAM.

If the fingerprints are rejected by the FBI, the applicant must be fingerprinted a second time, either by requesting the applicant to return to the USCIS overseas office, or by coordinating with the DOS embassy or consulate where the applicant resides to retake the prints. If the fingerprints are rejected a second time, the applicant must provide the rejected fingerprint sworn statement, a “no record” statement from the police department in each locality where he or she has resided during

Prior to adjudication of the waiver, USCIS staff research the Central Index System (CIS) to determine whether an A-file exists for the applicant. If there is a record of an A-number, staff will note the A-number on the Form I-601 and also:

• Review the EOIR screen through RAPS, EARM, or CIS to determine whether the applicant has been previously placed in removal/deportation proceedings before EOIR;

• Review CIS, CLAIMS, the EOIR screen and, where appropriate, RAPS to determine whether the applicant has applied for asylum or adjustment of status and, if so, note the dates the applications were pending;

• Review EARM for any information regarding prior deportations;

• Review CIS for NAILS record(s). If CIS indicates that there is a NAILS record, IBIS must be queried to determine the nature of the NAILS record, even though some of the information may already be contained in results of a CLASS check Events that result in the NAILS hit may have occurred between the IV application/CLASS check and the time the waiver is adjudicated

An applicant for an immigrant visa or K-1 or K-3 nonimmigrant visa who is inadmissible should file an application for a waiver. The waiver application is filed  with the U.S. Consulate’s Immigrant Visa Section (IV) that is considering the visa application.

When a consular officer determines that the alien is admissible except for the grounds for which a waiver may be sought, the consular officer informs the applicant of the requirement to file a Form I-601. The alien must file the application at the consular post, which receipts the fee and then forwards the  application to USCIS for a decision. Consular posts should send to overseas USCIS offices only those waiver applications where there are no other grounds of inadmissibility that cannot be overcome. The FAM makes clear that the determination of whether or not to grant a request for an immigrant waiver lies solely within the jurisdiction of DHS. Even if the consular officer does not believe an applicant is eligible for a waiver, DOS must submit the waiver request to the DHS at the applicant’s insistence to allow DHS to determine waiver eligibility.

If you’ve applied for a K-1 fiancee visa or K-3 spousal visa and have been denied, contact an attorney at www.myfianceevisa.com or 626-771-1078 for assistance.