If you have a visa you’re entitled to:
- An exclusion hearing before a judge to determine your admissibility;
- An administrative appeal to the Board of Immigration Appeals;
- A judicial review or appeal of any, or all, of the above decisions.
If the immigration officer won’t allow you into the country and says you will be sent back on the next flight, you must insist on appearing before a judge for an exclusion hearing. This is your right under US law, although the official may tell you it’s impossible until the following day, which means you must spend the night in a hotel. The officer may try to put you in detention for the night, although this is illegal and you should insist on staying in a hotel.
If you’re scheduled for an exclusion hearing, you should engage an immigration lawyer to represent you. If you have a poor case, your lawyer may suggest that you agree to leave voluntarily, because if you’re excluded from the US after a hearing it is entered on your permanent record. This makes it extremely difficult, if not impossible, to obtain a visa to enter the US in the future, as the exclusion must be recorded on all applications.
If you voluntarily withdraw your application to enter the US, you’re neither deported nor excluded, and the judge may allow you to remain for a few days to inform anyone necessary and make travel arrangements. However, your visa is cancelled and this must be declared when applying for a visa at a later date.
Alternatively, you may be admitted into the US on parole. This means that you must attend a deferred inspection interview on a specific date at the USCIS office nearest to your destination. This is preferable to an exclusion hearing before a judge, as you have a better chance of convincing a USCIS official that you should be allowed to remain in the US. You’re entitled to a lawyer, which although not required, is recommended.
There are many grounds for exclusion from the US, listed in section 212 of the Immigration and Nationality Act, the purpose of which is to protect the welfare, health, safety and security of the US. Some of the most important grounds for exclusion relate to anyone who:
- Is afflicted with a contagious disease, e.g. tuberculosis, or mental illness or who’s mentally disabled;
- Has been arrested and convicted for certain offences or crimes;
- Is believed to be a narcotics addict or trafficker;
- Has entered the US on the Visa Waiver Program (see page 86) and stayed longer than the permitted 90 days;
- Has been excluded or deported from the US within the last five years, removed from the US, or seeks or has sought or has procured a visa (or other documentation) or entry into the US by fraud or misrepresentation;
- Is or has been a member of a subversive or communist organisation;
- Was connected with the persecution of others in association with the Nazi government;
- Has detained, retained, or withheld custody of a child from a US citizen granted custody of the child;
- Seeks to perform skilled or unskilled labour (unlawfully);
- Seeks to engage in criminal or immoral activities.
This article is an extract from Living and Working in America. Click here to get a copy now.