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How does the ARO assess ineligibility?

The following notes are an excerpt from a document posted on state.gov with which the Admissibility Review Office (ARO) appears to use in determining ineligibility of visa applicants (source included at the bottom of this post) – and of particular interest – waiver review.


Determining Ineligibility

When adjudicating a visa application for an applicant that ARO have reason to believe has committed a crime involving moral turpitude, the officer must determine whether:

  • The offense was purely political
  • The offense committed involves moral turpitude (CIMT)
  • The applicant has been convicted; and
  • The applicant has admitted or may admit that he or she has committed acts which constitute the essential elements of a crime


Exceptions to Ineligibility

Certain statutory exceptions may prevent a determination of ineligibility by reason of a conviction for a crime involving moral turpitude. These exceptions relate to:
  • Crimes committed prior to age 18; or
  • Certain purely political offenses and convictions (CIMT)


Waiver


Principal Alien

An immigrant alien who is inadmissible under INA 212(a)(2)(A)(i)(I) is eligible to apply for a waiver of inadmissibility if it is established to the satisfaction of the Secretary of Homeland Security (DHS) that:
  • The activities for which the alien is inadmissible occurred more than 15 years before the date of the alien’s application for a visa for admission, or adjustment of status; the alien’s admission to the United States would not be contrary to the national welfare, safety, or security, and the alien has been rehabilitated; or
  • In certain cases involving close relatives; or
  • If the alien is a Violence Against Women’s Act (VAWA) self-petitioner


Certain Relatives of U.S. Citizens or Legal Permanent Residents (LPRs)

An alien immigrant who is the spouse, parent, son, or daughter of a U.S. citizen or an alien lawfully admitted for permanent residence in the United States may apply for a waiver if:
  • It is established of the Secretary of Homeland Security‘s (DHS) satisfaction that the alien’s denial of admission would result in extreme hardship to the U.S. citizen or lawfully resident spouse, parent, son, or daughter; and
  • The Secretary of Homeland Security (DHS) has consented to the alien’s applying or reapplying for a visa for admission or adjustment of status to the United States.


Evidence of Eligibility to Apply for a Waiver

When the court records or statutes leave doubt concerning an alien’s eligibility for a waiver, you (consular officer) must ensure that you have obtained complete records and copies of all relevant portions of the statute under which the conviction was obtained are assembled, as well as any available commentary by authorities, prior judicial holdings and the like. The post must forward these documents to DHS together with the waiver application. Because DHS has exclusive authority for approving 212(h) waivers, any question concerning waiver eligibility must be submitted to DHS for resolution.

For further reading, the source is included below:

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