I need to enter the U.S. for business purposes to attend IT tradeshows and seminars, but I am inadmissible due to a previous criminal conviction. How do I deal with this previous conviction?

Question:

I am a citizen of Russia. In 2008, I started a software development company. Last year, I applied for a visitor visa to attend various IT tradeshows and professional development seminars in the U.S. for my business, but my visa was denied because I was deemed to be inadmissible under section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act (“INA”). My inadmissibility is the result of a 15-year-old conviction for theft. After my visa was denied, I was told to obtain a waiver before a visa could be issued. What waiver do I need to obtain to enter the U.S.?

Answer:

Thank you for your question. I am unable to provide you with case-specific advice at this time; however, below is some information that will hopefully assist you as you move forward with a new visa application.

Business Visitor Visa (B-1)

In general, a foreign national who wishes to enter the U.S. must first obtain a visa, either a nonimmigrant visa (temporary) or an immigrant visa (permanent). A “visitor” visa is used to enter the United States temporarily for business (B-1) or pleasure (B-2).

To enter the U.S. for business purposes, such as, to attend a scientific, educational, professional or business conference, the appropriate visa to apply for is a B-1 visa. Based on the reasons you provided above, i.e. to attend IT tradeshows and seminars, you will likely want to apply for a B-1 visa.

INA § 212 (d)(3)(A) Waiver

Due to your inadmissibility, you are required to obtain a nonimmigrant waiver in accordance with INA § 212 (d)(3)(A). As you indicate above, you are inadmissible under INA § 212(a)(2)(A)(i)(I). Pursuant to INA § 212(a)(2)(A)(i)(I),

…[A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of (I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime…is inadmissible.

The Board of Immigration Appeals (“BIA”) has set forth three factors to be considered when adjudicating a § 212 (d)(3)(A) waiver: (1) The risk of harm to society if the applicant is admitted, (2) The seriousness of the applicant’s immigration or criminal law violations; and (3) The nature of the applicant’s reasons for wishing to enter the United States. Thus, any waiver application should address these three factors supported by corresponding evidence.

Consular Recommendation

After submitting your visa and waiver applications, your waiver must first receive consular recommendation before it is forwarded to the Admissibility Review Office (“ARO”) for review. As outlined by State Department directives, the following conditions must be met before a waiver application can be recommended:

  • The applicant is not inadmissible under INA § 214(b);
  • The applicant is not inadmissible under § 212 (a)(3) [security and related grounds];
  • The applicant is not seeking a waiver of nonimmigrant documentary requirements of INA § 212(a)(7)(B); and
  • The applicant is, otherwise, qualified for the nonimmigrant visa he or she is seeking.    

Additionally, consular officials will also consider the following factors when deciding to recommend a waiver:

  • The recency and seriousness of the activity or condition causing the foreign national’s inadmissibility;
  • The reasons for the proposed travel to the United States; and
  • The positive or negative effect, if any, of the planned travel on U.S. public interests.