While most aliens who have never been out of status are eligible to apply for a Third Country Visa, there are certain aliens who still may not be eligible to obtain a Third Country Visa (TCV). Aliens who fall within one of the following classes of aliens, may be barred from obtaining a TCV:
Communicable Disease or Mental Disorder: Any alien who is diagnosed with a contagious disease or mental disorder and poses a threat to the public's safety may not obtain a Third Country Visa in accordance with the regulations prescribed by the Secretary of Health and Human Services.
Drug Abuse or Addiction: Any alien who is diagnosed as a drug abuser or addict is inadmissible and may not obtain a visa in accordance with the regulations prescribed by the Secretary of Health and Human Services.
Arrest or Conviction: Generally, any alien who is convicted of, admits to, or attempts any of the following acts may not obtain a Third Country Visa:
Crimes of moral turpitude;
Violations of any U.S. or foreign law or regulation relating to controlled substances; and/or
Convicted of two or more offenses where the sentences total five (5) or more years of confinement.
Exceptions to Arrest or Conviction
Although an alien who has been arrested for or convicted of a crime is generally ineligible to apply for a Third Country Visa, there are instances where such an alien may be granted a TCV. An alien may obtain a Third Country Visa even if a crime was committed, provided he/she satisfies one of the following conditions:
The crime was committed when the alien was under eighteen (18) years of age;
The crime was committed more than five (5) years before the current date/visa application;
The maximum possible penalty for crime convicted does not exceed imprisonment for 1 year; or
The alien was not sentenced to a term of imprisonment exceeding six (6) months.
Controlled Substance Drug Trafficking, Prostitution, or Procurement: An alien who is/has been a drug trafficker of any controlled substance or engages in prostitution within ten years of the date of the visa application will be considered inadmissible and may not obtain a Third Country visa. This bar also applies to an alien who has procured/attempted to procure prostitution, or has received proceeds from prostitution.
Fraud or Willful Misrepresentation: An alien who has aided another person in obtaining a visa or other U.S. immigration benefit by fraud or misrepresentation is inadmissible and may not obtain a Third Country visa.
Terrorist activities: An alien who seeks to enter the U.S. to engage in a terrorist activity or any other activity that threatens national security is inadmissible and may not obtain a visa.
Activities that pose a threat to national security include: violations of law related to espionage, prohibiting the export of U.S. goods, technology, or sensitive information, and sabotage.
Terrorist activities include:
Hijacking or Sabotage of an aircraft’
Seizing, detaining or threatening to kill or injure another individual in order to compel a third person or governmental organization to compel or abstain from committing an act;
Violent attacks upon an internationally protected person; and/or
Discriminatory Persecution or Genocide: An alien is inadmissible if he/she participated in the persecution of any person because of race, religion, national origin, or political opinion. An alien is inadmissible if he/she has engaged in conduct that is defined as genocide according to guidelines established by the International Convention on the Prevention and Punishment of Genocide.
Public Charge: An alien who is determined by the U.S. Consul to become a likely public charge or burden to society is inadmissible. Factors considered include the alien's age, health, family status, assets, resources, financial status, education and skill set.
Status Violation: Generally, if an alien was admitted into the United States based on a non-immigrant visa, then remained in the U.S. beyond the authorized period of stay, thus resulting in a status violation, he/she will be barred a non-immigrant visa in a Third Country and must apply for a non- immigrant visa in his home country.
Unlawful Presence: Generally, aliens who have been unlawfully present in the U.S. anywhere between 181-364 days are barred from obtaining a non-immigrant visa for three (3) years. Moreover, aliens who have been unlawfully present in the U.S. for more than one year are typically barred from obtaining a non-immigrant visa for ten (10) years. However, exceptions may apply depending on your specific facts and circumstances. We recommend that you consult with an experienced immigration attorney.
Conflicting Immigration Intent: In general, an alien who meets the objective qualifications for a non-immigrant visa will be denied a Third Country Visa or entry into the United States if the U.S. Consul feels that the alien's true intention is to remain in the U.S. permanently. There are some classes of non-immigrant visas that may not be obtained if the applicant filed an immigration petition or a Labor Certification since there is conflicting immigrant intent. The most common non-immigrant visa types include the B (Temporary Business/Tourist), F (Student), and J (Exchange program participants) with a two-year foreign residency restriction. If your situation involves potential conflicting immigration intent, we recommend that you seek the assistance of an experienced immigration attorney. For more information about immigrant and non-immigrant intent issues, please click here.
Certain Nationals: The United States bars nationals from countries who have participated in known terroristic activities including North Korea, Cuba, Syria, Sudan, Iran, Iraq, and Libya.
Immigration and Nationality Act: INA § 212(a)(1)-(4), (6), and (9)
(Updated 10/17/2012 by AD)
For more information about Third Country Visas, please click on one of the following links: