Most aliens are eligible to apply for a Third Country Visa. However, if you fall within one of the following class of aliens, you may be barred from obtaining a Third Country Visa:
- 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 regulations prescribed by the Secretary of Health and Human Services.
Any alien who is diagnosed as a drug abuser or addict is inadmissible and may not obtain a visa in accordance with regulations prescribed by the Secretary of Health and Human Services.
Generally, any alien who is convicted of/admits/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.
- Convicted of two or more offenses where the sentences total five (5) or more years of confinement.
Exceptions to Arrest or Conviction Rule
An alien may obtain a Third Country visa even if a crime was committed, provided he/she satisifes one of the following waivers:
- Crime was committed when the alien was under eighteen (18) years of age; or
- Crime was committed more than five (5) years before the current date/visa application; or
- Maximum possible penalty for crime convicted does not exceed imprisonment for 1 year; or
- Alien was not sentenced to a term of imprisonment exceeding six (6) months.
- Controlled Substance Drug Trafficking, Prostitution, or its 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 is 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.
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 relating to espionage.
- Violations of law prohibiting export of U.S. goods, technology, or sensitive information.
- Violations of law related to 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.
- Discrimnatory 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.
An alien who is determined by the U.S. Consul to become a likely public charge or burden to society is inadmissible.
Factors considered by the U.S. Consul include the alien's:
- Family status;
- Assets, resources, and financial status; and
- Education and skill sets.
Generally, an alien is barred from applying for a non-immigrant visa in a Third Country and must apply for a non- immigrant visa in his home country if the alien was admitted into the U.S. based on a non-immigrant visa, remained in the U.S. beyond the authorized period of stay, resulting in a status violation.
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 then 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 to the U.S. 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 nonimmigrant 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.
Mr. Chen lives in San Francisco and was admitted into the U.S. on a J-1 visa and is not subject to the two-year home residency requirement. His J-1 visa is no longer valid and he has since changed to an F-1 status. Mr. Chen wants to travel to his home country during his school break and is concerned that his visa will be denied. Specifically, he is concerned that a sudden change from a one-year program to a six-year program may raise the question of his immigrant intent. (His J-1 program is a year-long program which he did not complete). In this type of situation, we recommend that an experienced immigration attorney accompany the individual to his/her Third Country Visa interview to help present their case effectively.
Ms. Lee is a British National and entered the U.S. as a tourist under the Visa Waiver Pilot Program. She has applied for an F-2 (Spouse of Student Visa Holder) visa in her home country and was denied. She applied again in her home country, and this time her F-2 Visa was granted. After the visa was granted, a reviewing officer cancelled her visa, concluding that she had conflicting immigration intent.
As a general rule, U.S. Consulates are reluctant to grant visas to those aliens who last entered the U.S. as tourists. Ms. Lee wants to obtain an F-1 visa in Mexico so she can re-enter and be admitted to the U.S. as an F-1 student. Her situation is difficult because in addition to being denied a visa in her home country, the visa she was later issued was canceled due to a finding of her immigrant intent only months before she applied for a visa in Mexico. In this type of situation, we recommend that an experienced immigration attorney accompany the individual to his/her Third Country Visa interview to help present their case effectively.
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