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US Immigration Applications and Waivers of Inadmissibility
By Siam Global Associates, Thailand Law firm
Summary: This section discusses the process the United States Embassy and Department of Homeland Security, Bureau of Citizenship and Immigration Services follows when determining whether or not to grant a waiver following a denied application for a United States K1 or K3 marriage or fiance visa. It also specifically addresses the issue citizens of Thailand face when their K1 or K3 marriage or fiance visa application is jeopardized because of allegations of prostitution from working in a go-go or hostess bar. It also explains how investigations may be conducted at the United States Embassy or BCIS Bangkok District Office in the event of failure to disclose such information.
FACTORS USED IN DETERMINING WHETHER TO GRANT A WAIVER
According statute, the decision whether or not to grant a waiver is to be made by the Attorney General. The Attorney General has delegated this authority to the Department of Homeland Security, Bureau of U.S. Citizenship and Immigration Services (BCIS), previously known as the Immigration and Naturalization Service (INS). So, while applications for a nonimmigrant visas and waivers may be submitted to a U.S. Consulate office or Embassy, the applications will most likely be directed to BCIS.
The relevant factors that the BCIS uses in weighing an applicationin stem from a case called Matter of Hranka. This case involved a Canadian citizen who had been deported from the United States in 1975 for engaging in prostitution. However, following her deportation she returned to Canada and had seemingly rehabilitated herself. She then wished to obtain a visa so she could make trips to the United States in order to visit family but the Immigration and Naturalization Service denied her application. The Board of Immigration Appeals (BIA) overruled the INS decision, deciding that the alien was eligible for such a visa because she appeared to have been rehabilitated, despite the short period of time that had passed.
The case established the following as factors to be considered when deciding to grant a waiver:
1. The risk of harm to society if the alien is admitted;
2. Seriousness of the alien's criminal or immigration violation or other ground of inadmissibility; and
3. The alien's reason for wanting to come to the U.S.
SUSPICION OF PROSTITUTION AS GROUNDS IN THAILAND:
In Thailand, where some women work in entertainment establishments such as go-go and hostess bars, there are concerns that this employment may be connected to prostitution and therefore establish grounds for inadmissibility. If the BCIS determines that the woman was actually involved in prostitution, this may result in grounds for inadmissibility. However, an application for a waiver can still be applied for.
If the BCIS independently discovers employment that could be deemed as prostitution they will interrogate the individual in order to confirm or deny such employment. If a visa application failed to list such employment (whether directly involved in prostitution or otherwise) this could result in additional investigation which may complicate the future waiver process.
In the event that there is a criminal record of prostitution occurring within the past 10 years, it may be advisable to submit the waiver application subsequent with the visa application.
The BCIS Bangkok Office will not provide any advisory opinions as to the likelihood of an application being accepted or rejected; applications and individuals are considered on a case by case basis.