Inadmissibility Under INA § 212(a)(2)(i)(I) & Waiver Under INA § 212(d)(3)

QUESTIONS:  In 2005, I applied for a U.S. visa at the U.S. Consulate in Sydney, Australia.  On the form it was asked if I had ever been arrested / convicted of a crime of moral turpitude. I had indeed been convicted of scratching the trunk of a car some 15 years prior and so answered truthfully 'yes' on the form. The penalty imposed was a $250.00 without custodial period or probation / good behavior bond.  I paid it at the desk on the way out of the magistrate's court and the matter was ended.  This was my one and only brush with the law. The matter was treated as a 'spent conviction' after a 10 year qualifying period which means there is no live searchable record of this unfortunate incident. 

I submitted my paperwork, sans police check, was interviewed and on the same day was issued a visa 5 year visa as requested. The annotation read "NOT 2A1 PER FAM 40.21(A)N7.1.”  I walked away pretty happy and have since used it twice annually to travel to the US.  I have always been treated respectfully at borders and never submitted for secondary interview / inspection. 

I recently had cause to renew my visa.  I gave the exact same information but on this occasion was deemed inadmissible outright. They took my passport and applied for a waiver on my behalf.  I expected a 5 year visa again as requested and that I may even wind up with the original annotation again after the State Department had reviewed my case and previous visa history but...no. My passport was delivered to me with a 1 year visa with the annotation 212(SMALL D) (3) (A) WAIVER OF 212 (SMALL A) (2) (SMALL I) (I) GRANTED. 

(1) Why was I found not 2A1 by the consulate on the first occasion in 2005 and inadmissible requiring a waiver in 2010? Had the law changed or is it a matter of inconsistency? The offence was reasonably minor and happened 25 years ago. 

(2) If I held a 5 year visa on the first occasion, conducted perfectly well I may add, and I arrive now with this annotation and a 1 year visa next visit, should I expect to be given a hard time by CBP regardless of previous good conduct as a visitor? 

(3) The Consulate do not make themselves available here in Australia to answer queries regarding this kind of thing.  Am I entitled to ask anyone to review this?  Is it easy to have a case reviewed and can this have negative consequences if I do at least ask why I am suddenly inadmissible with the same data? 

(4) With a waiver annotation, am I likely to ever be issued a 5 year visa again?  I don't know if having to jump these hoops each year is worth the pain. 

This is all very confusing and worrying. If there is nothing I can do, I'd at least like to understand why I have been held in poor regard all of a sudden. 

RESPONSE:  You have asked for some very specific responses, which I cannot provide you without first learning more about your particular case.  Specifically, I would need to review the Australian law under which you were convicted, as well as your criminal records.  I would also need to review your visas and applications, if available. 

To give you some feedback, the U.S. immigration law for visitors has NOT changed since 2005.  Rather, things have become stricter with respect to the screening of criminal aliens.  Consular determinations of inadmissibility are generally not reviewable.  In other words, there is no appeal of a Consular determination.  However, we have had past success approaching the Consulate when we have definitive evidence that the Immigration and Nationality Act was improperly applied.  

If you continue to apply for a nonimmigrant visa in connection with a nonimmigrant waiver, you are eligible to obtain a 5-year visa/waiver again.  It is common practice lately, however, for individuals to only be issued a waiver for a period of one-year upon initial application, with longer periods of validity upon renewal.  Five (5) years is the maximum validity period allowable under the law. 

If you would like to submit additional information about your case and receive a complete professional analysis, please consider contacting my office to set up a consultation.