Petition Approvable - Even with Inadmissibility
Posted Nov 26, 2004
 
Recently-appointed Chief Counsel of the U.S. Citizenship and Immigration Services (USCIS), Robert C. Divine, issued a Memorandum to William R. Yates, Associate Director for Operations at USCIS, on October 14, 2004. The Memo discusses the types of cases that may be approved even if a person has a NSEERS violation or other evidence of inadmissibility or deportability.

Underlying Petition Not Deniable Solely if Inadmissible or Deportable
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In the Memo, Mr. Divine concludes that an I-485 Application for Adjustment of Status or a nonimmigrant application for a change or extension of status may be denied if a person has committed a willful, unexcused NSEERS violation or is otherwise inadmissible or deportable. An immigrant petition, however, (such as the I-140, I-130, I-360, or a nonimmigrant petition that requests consular or port notification rather than a change or extension of status) should not be denied solely because the person is inadmissible or deportable.
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Background on NSEERS
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Regular MurthyDotCom and MurthyBulletin readers will recall that NSEERS is the National Security Exit-Entry Registration System, sometimes referred to as Special Registration. The NSEERS registration requirements are covered in our MurthyBulletin articles, First Phase of Entry-Exist Registration to Begin (Aug 16, 2002) and Special Registration Greatly Expanded, Dec 16, 2002 Deadline (Nov 15, 2002), available on MurthyDotCom.
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Notation of Inadmissibility on Approval
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Although Mr. Divine's Memo may seem helpful in the sense that it recommends that the underlying I-130 or I-140 petition could be approved, it provides that the USCIS may indicate on the petition approval that the foreign national could possibly be inadmissible or deportable. The Memo also outlines that the USCIS adjudicator may make a note in the database regarding inadmissibility or deportability. This indicates to a subsequent adjudicator, in the case of a request for change / extension or an adjustment of status, that the person is / may be inadmissible.
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Prior Convictions Could Result in Petition Denial
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Further, Mr. Divine's Memo states that certain evidence in a foreign national's file may indicate that s/he is inadmissible or deportable and this information may be used to deny the petition. For example, if one has a prior conviction of fraud, the adjudicator may investigate the credentials of that individual to determine ineligibility for an employment-based petition.
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Petition Approval Not Assurance of Admission
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Mr. Divine's Memo brings to light an important issue. A petition approval, such as an H1B petition approval, does not guarantee a beneficiary that s/he will be admitted to the United States. This means that one may be the beneficiary of an H1B petition approval, but may not be eligible to receive an H1B visa at the consulate to be admitted in H1B status. Even with an H1B petition approval and an H1B visa issued at a consular post, one could be turned away at the Port of Entry (an airport or a land port), without receiving H1B status, if s/he is found to be inadmissible for any reason. The Memo outlines examples of the reasons for inadmissibility or deportability such as the failure to comply with NSEERS, criminal violations, immigration fraud / misrepresentation, and extended periods of unlawful presence.
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Conclusion
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Mr. Divine's October 14, 2004 Memo highlights the issue that the mere approval of the underlying immigrant petition in no way guarantees that the immigrant visa will be issued or that the person will be admitted into the U.S. In fact, the approval of the underlying petition may actually be a trap for the unwary! Anyone with cause for concern should consult with a qualified immigration attorney to understand the possible immigration options and potential consequences of an attempted entry to the United States if there is a likelihood of inadmissibility.