Exclusion from the U.S. - Section 212(a)7A(i)(1)

Under Section 214b of the Immigration and Nationality Act, a Consular officer can deny a non-immigrant visa (J1, F1, B1, B2) if they believe that the foreign applicant has not overcome the statutory presumption that they are actually an intending immigrant. In some cases, a consular officer may grant a tourist visa application, but the foreign national will be refused entry upon arrival in the United States of America.

How can a foreign national be granted a visa and still be denied entry to the United States?

There is a common misconception that visa application approval creates a “right” to enter the United States of America. In fact, Customs and Border Patrol (CBP) Officers have the discretion to turn away alien nationals if they believe that there is a ground of excludability. If a CBP officer reasonably believes that an ostensible non-immigrant actually has immigrant intent, then they have the right to deny entry and it is further within the officer’s discretion to use expedited deportation to remove the prospective entrant.

The following paraphrases the INA:

According to section 212(a)(7)(A)(i) of the United States Immigration and Nationality Act (INA), any immigrant who, at the time of application for admission:
is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing identification card, or other valid entry document required by the Immigration and Nationality Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality if such document is required under the INS regulations, or whose visa has been issued without compliance with the provisions of the Immigration and Nationality Act is excludable [from the United States].
A waiver is available under INA §212(k) where the Attorney General is satisfied that the exclusion was not known to, and could not have been ascertained by the exercise of reasonable diligence by, the immigrant before the time of departure of the vessel or aircraft from the last port outside the United States and outside foreign contiguous territory or, in the case of an immigrant coming from foreign contiguous territory, before the time of the immigrant’s application for admission.

Under INA §212(a)(7)(B)(i), any nonimmigrant who:

1. is not in possession of a passport valid for at least six months from the date of expiration of the initial period of the alien's admission or contemplated initial period of stay authorizing the alien to return to the country from which the alien came or to proceed to some other country during such period; or
2. is not in possession of a valid nonimmigrant visa or border crossing identification card at the time of application for admission

is excludable.

A general waiver is authorized under INA §212(d)(4):

1. on the basis of unforeseen emergency in an individual case;
2. on the basis of reciprocity with respect to nationals of foreign contiguous territory or of adjacent islands and residents thereof having common nationality with such nationals (Canadian citizens and landed immigrants of Canada having British commonwealth citizenship are therefore exempt from visa and passport requirements except in the case of K-1 and E-1/E2 nonimmigrant visas); or
3. in the case of aliens proceeding in immediate and continuous transit through the United States pursuant to landing agreement contracts entered into by common carriers.

A waiver is also authorized for visitors to Guam and certain nationals entering as visitors under the Visa Waiver Pilot Program.