Chapter 15 - Money Laundering

A. Purpose

Section 212(a)(2)(I) of the Immigration and Nationality Act (INA) makes any alien involved in money laundering inadmissible to the United States.

Under INA 212(a)(2)(I), the following are inadmissible to the United States:

• Any alien who an officer knows, or has reason to believe, has engaged in, is engaging in, or seeks to enter the United States to engage in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957 (relating to laundering of monetary instruments);^[1] or
• Any alien who an officer knows is or who has been an aider, abettor, assister, conspirator, or colluder with others in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957 (relating to laundering of monetary instruments).^[2]

B. Background

Generally, money laundering facilitates a broad range of serious underlying criminal offenses and ultimately threatens the integrity of the financial system because it involves financial transactions in which criminals, including terrorist organizations, attempt to disguise the proceeds, sources, or nature of their illicit activities.

The money laundering ground of inadmissibility was added to the INA in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), which was passed, in part, by Congress to strengthen measures to prevent the use of U.S. financial systems for personal gain by foreign officials.^[3]

There are no waivers or exceptions included in the statutory language of INA 212. However, certain categories of nonimmigrants and immigrants are exempt from this ground of inadmissibility or have a waiver of inadmissibility available to them under other sections of law.^[4]

C. Legal Authorities

• INA 212(a)(2)(I) – Money laundering

D. Definitions

The money laundering ground of inadmissibility references a number of definitions in 18 U.S.C. 1956 and 18 U.S.C. 1957 that are critical to making money laundering inadmissibility determinations.

1. Money Laundering

In general, money laundering refers to financial transactions in which criminals attempt to disguise the proceeds, sources, or nature of their illicit activities. For purposes of inadmissibility determinations under INA 212(a)(2)(I), the statute specifies that money laundering means an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957.

Conduct criminalized by these two federal laws includes the following:^[5]

• Conducting or attempting to conduct a financial transaction involving the proceeds of certain crimes with the intent to promote additional unlawful activity;^[6]
• Conducting or attempting to conduct a financial transaction involving the proceeds of certain crimes in order to conceal or disguise the nature, location, source, ownership, or control of illegal proceeds;^[7]
• Conducting or attempting to conduct a financial transaction knowingly designed to avoid state or federal transaction reporting requirements;^[8]
• Transporting, transmitting, transferring or attempting to transport, transmit, or transfer funds generated by certain criminal activities into, out of, or through the United States in order to promote further unlawful activity, or to conceal or disguise the nature, location, source, ownership, or control of criminal proceeds, or to avoid state or federal transaction reporting requirements;^[9] and
• Knowingly engaging or attempting to engage in a monetary transaction in criminally derived property with a value greater than $10,000.^[10]

2. Monetary Instruments

“Monetary instruments,” as defined in 18 U.S.C. 1956(c)(5), means:

• Coin or currency of the United States or of any other country, travelers’ checks, personal checks, bank checks, and money orders; or
• Investment securities or negotiable instruments, in any form in which the title can be passed.

3. Monetary Transactions

“Monetary transactions,” as defined in 18 U.S.C. 1957(f)(1), means the deposit, withdrawal, transfer, or exchange, in or affecting interstate or foreign commerce, of funds or a monetary instrument^[11] by, through, or to a financial institution,^[12] including any transaction that would be a financial transaction.^[13]

4. Financial Transaction

A “financial transaction,” as defined in 18 U.S.C. 1956(c)(4), means a transaction:

• Which in any way or degree affects interstate or foreign commerce involving the movement of funds by wire or other means;
• Which in any way or degree affects interstate or foreign commerce involving one or more monetary instruments;^[14]
• Which in any way or degree affects interstate or foreign commerce involving the transfer of title to any real property, vehicle, vessel, or aircraft; or
• Involving the use of a financial institution^[15] which is engaged in, or the activities of which affect, interstate or foreign commerce in any way or degree.

 E. Aliens Engaged in Money Laundering

The federal money laundering statutes are complex, but they include four basic components. To determine whether an alien is inadmissible for having engaged in money laundering, an officer’s findings should include that:

• The alien engaged in a transaction or transfer of money or property;
• The money or property involved in the transaction was derived from a "specified unlawful activity," which is broadly defined in 18 U.S.C. 1956(c)(7);
• The alien knew the money or property was derived from some form of unlawful activity; and
• The transaction was intended to promote a specified unlawful activity, to conceal the fact that the money or property was criminally derived, or to evade taxes or reporting requirements under state or federal law.

An officer only needs to know or have reason to believe^[16] an alien has engaged, is engaging, or seeks to enter the United States to engage in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957 (money laundering offenses), or has knowingly aided, abetted, assisted, conspired, or colluded with others in such an offense. A conviction is not required; officers may rely on any reasonable, substantial, and probative evidence in the record. ^[17].

F. Reason to Believe

A determination of inadmissibility for money laundering under INA 212(a)(2)(I) only requires the officer to have a “reason to believe.” Reason to believe is substantially lower than what would be required for a conviction in a court of law. At the same time, a suspicion is not sufficient to find an alien inadmissible under the reason to believe standard. There must be reasonable, substantial, and probative evidence to support the belief that the alien is engaged in money laundering.^[18]

For example, an alien could be found inadmissible even though criminal charges have been dismissed, or even if an alien has never been arrested. USCIS may also have reason to believe the alien has engaged in or is engaged in money laundering based on an alien’s admission, a record of arrests with failure to prosecute by the government, or reliable and corroborative reports.

If an alien is convicted of a money laundering offense as defined in 18 U.S.C. 1956 or 18 U.S.C. 1957, the conviction is evidence that the alien is inadmissible under INA 212(a)(2)(I). A conviction is not required for an officer to find the alien inadmissible for money laundering, but the officer should be able to articulate specific facts relevant to a specific federal criminal money laundering statute as defined in 18 U.S.C. 1956 or 18 U.S.C. 1957. Mere suspicion is not sufficient to find an alien inadmissible for money laundering.

G. Exceptions, Exemptions, and Waivers of Inadmissibility

1. Exceptions

There are no statutory exceptions under the money laundering ground of inadmissibility at INA 212(a)(2)(I).

2. Exemptions

For certain immigrant benefits, aliens are not subject to the inadmissibility ground under INA 212(a)(2)(I). Some immigrant categories may be listed on the Application to Register Permanent Residence or Adjust Status (Form I-485) to register or obtain documentation of their lawful permanent resident (LPR) status, but are not subject to an inadmissibility determination. These categories of LPRs, including individuals born in the United States under diplomatic status and American Indians born in Canada, are therefore exempt from this inadmissibility ground.^[19]

Victims of qualifying criminal activity (U nonimmigrants) applying for adjustment of status under INA 245(m) are also exempt from the money laundering ground of inadmissibility, because the ground does not apply to their immigrant category.^[20]

Additionally, some nonimmigrant categories are not subject to INA 212(a)(2)(I), including:

• Diplomats or foreign government officials (A-1 and A-2 nonimmigrants);
• Aliens transiting to and from the United Nations Headquarters District (C-2 nonimmigrants);
• Foreign government officials, their immediate family members, attendants, servants, or personal employees in immediate and continuous transit through the United States (C-3 nonimmigrants);
• Employees of international organizations and members of their immediate family members (G-1, G-2, G-3, and G-4 nonimmigrants); and
• Employees of the North Atlantic Treaty Organization (NATO) and their immediate family members (NATO-1 through NATO-4 and NATO-6 nonimmigrants).^[21]

3. Waivers

Although there is no waiver of inadmissibility for this ground in INA 212 for immigrants, Congress has established a few category-specific waivers in other sections of law.^[22] 

 A waiver is distinct from the statutory exemptions. The exemptions are automatic, based on the immigration benefit sought or the immigrant category. The alien does not need to formally request an exemption and there are no other eligibility criteria. In contrast, an alien must formally request a waiver from USCIS and demonstrate that he or she meets all of the eligibility requirements for that waiver and merits a favorable exercise of discretion. Examples of immigrant categories where a waiver is available for this ground include aliens applying for adjustment to lawful permanent residence as:

• Special immigrant juveniles (SIJs);^[23]
• Victims of trafficking (T nonimmigrants);^[24]
• Refugees;^[25]
• Asylees;^[26]
• Certain entrants before January 1, 1982 (“Legalization”);^[27]
• Aliens with continuous residence in the United States since before January 1, 1972 (“Registry”);^[28] and
• Amerasians under the Amerasian Homecoming Act.^[29]

Aliens may also apply for a waiver of this inadmissibility when applying for certain other immigration benefits, including, but not limited to, aliens seeking:

• Temporary residence as a special agricultural worker;^[30]
• Temporary Protected Status;^[31] and
• Suspension of deportation or special rule cancellation of removal pursuant to the Nicaraguan Adjustment and Central American Relief Act (NACARA).^[32]

INA 212(d)(3)(A) provides for a discretionary waiver of inadmissibility under INA 212(a)(2)(I) for an alien applying for admission to the United States as a nonimmigrant.

H. Adjudication

1. Applicability

This ground of inadmissibility applies to any alien seeking a benefit for which admissibility is required, such as an alien inside the United States applying for adjustment of status to that of an LPR,^[33] an alien applying for an immigrant or nonimmigrant visa with the U.S. Department of State (DOS) at a U.S. embassy or consulate outside of the United States, or an alien applying for admission at a U.S. port of entry.

2. Burden of Proof

The burden of proof to establish admissibility when seeking an immigration benefit is always on the alien.^[34] The burden never shifts to USCIS at any time during adjudication.^[35]

3. Standard of Proof

If there is evidence that would permit a reasonable person to conclude that the applicant has engaged in, is engaging in, or seeks to enter the United States to engage in, an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957, or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957, then the applicant has not successfully met the burden of proof.

In these cases, USCIS considers the applicant inadmissible for having engaged in, engaging in, or seeking to enter the United States to engage in, an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957, or being or having been a knowing aider, abettor, assister, conspirator, or colluder with others in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957, unless the applicant is able to successfully rebut the officer’s inadmissibility finding.

An alien who fails to meet the burden of proof is inadmissible under INA 212(a)(2)(I) unless the applicant is able to show clearly and beyond doubt^[36] that he or she:

• Did not engage or is not engaging in, or is not seeking to enter the United States to engage in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957 (relating to laundering of monetary instruments); or
• Is not or has not been an aider, abettor, assister, conspirator, or colluder with others in an offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957 (relating to laundering of monetary instruments).

4. Evidence

A finding of inadmissibility under INA 212(a)(2)(I) must be based on evidence, such as security and background checks, criminal convictions, arrest records, oral testimony, written testimony, or any other documentation containing information about the alien’s involvement in a money laundering offense described in 18 U.S.C. 1956 or 18 U.S.C. 1957.

If the alien has been convicted under 18 U.S.C. 1956 or 18 U.S.C. 1957, that conviction is evidence that the alien is inadmissible under INA 212(a)(2)(I). However, a conviction is not required for an alien to be inadmissible under this ground.

USCIS considers responses on applications and petitions as evidence when determining if an alien is inadmissible under INA 212(a)(2)(I).^[37] Some USCIS forms, including Form I-485, require aliens to indicate if they have ever engaged in money laundering or have ever knowingly aided, assisted, abetted, conspired, or colluded with other in money laundering or seek to enter the United States to engage in such money laundering.

If an alien misrepresents information regarding money laundering when answering questions on Form I-485, the alien could also be found inadmissible under INA 212(a)(6)(C)(i).^[38]

5. Derogatory Information

In general, USCIS is required to provide sufficient notice when derogatory information is uncovered during the course of the adjudication that is not known to the alien and USCIS intends to deny the benefit request on the basis of that derogatory information.^[39] If the alien is unaware of the derogatory information and its impact on eligibility, USCIS must provide the alien an opportunity to rebut that information.^[40]

I. Guidelines for Admissibility Determinations

The tables below map out the process for making money laundering admissibility determinations by class of aliens described in INA 212(a)(2)(I).

1. Aliens Engaged in Money Laundering

The following table provides officers with an overview of how to determine whether an alien is inadmissible under INA 212(a)(2)(I)(i).^[41]

An officer’s determination that an alien is inadmissible under INA 212(a)(2)(I)(i) should reflect facts demonstrating each of the factors in Steps 1 through 4 have been met.

When considering each of the factors in Steps 1 through 4, an officer should remember that the standard for his or her determination is that the officer “knows, or has reason to believe” that the alien “has engaged, is engaging, or seeks to enter the United States to engage” in money laundering.^[45]

2. Aiders, Abettors, Assisters, Conspirators, or Colluders of Money Launderers

The following table provides officers with an overview of how to determine whether an alien is inadmissible as an aider, abettor, assister, conspirator, or colluder of an alien engaged in money laundering.^[46]

An officer only needs to determine that an alien has been a knowing aider, abettor, assister, conspirator, or colluder with money launderers. A conviction is not required for an alien to be inadmissible under this ground. However, if the alien was convicted of aiding, abetting, assisting, conspiring, or colluding with an alien engaged in money laundering, the conviction is evidence that the alien is inadmissible under INA 212(a)(2)(I)(ii).

Footnotes

[^ 1] See INA 212(a)(2)(I)(i). See 18 U.S.C. 1956 and 18 U.S.C. 1957. See Section D, Definitions, Subsection 2, Monetary Instruments [8 USCIS-PM D.15(D)(2)].

[^ 2] See INA 212(a)(2)(I)(ii).

[^ 3] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) Pub. L. 107-56 (PDF) (October 26, 2001).

[^ 4] See Section G, Exceptions, Exemptions, and Waivers of Inadmissibility [8 USCIS-PM D.15(G)].

[^ 5] See 18 U.S.C. 1956 and 18 U.S.C. 1957.

[^ 6] See 18 U.S.C. 1956(a)(1)(A)(i) and 18 U.S.C. 1956(c)(7). See Section D, Definitions, Subsection 4, Financial Transaction [8 USCIS-PM D.15(D)(4)]. 18 U.S.C. 1956(c)(7) further defines “specified unlawful activity” to include most Racketeer Influenced and Corrupt Organization Act (RICO) offenses in Pub. L. 91-452 (PDF), 84 Stat. 922 (October 15, 1970), offenses against foreign nations (including controlled substance violations, murder, kidnapping, robbery, extortion, fraud, and bribery), controlled substance violations, and other miscellaneous offenses against person and property (fraud, theft, embezzlement, and crimes of violence).

[^ 7] See 18 U.S.C. 1956(a)(1)(B)(i) and 18 U.S.C. 1956(a)(7). See Section D, Definitions, Subsection 4, Financial Transaction [8 USCIS-PM D.15(D)(4)].

[^ 8] See 18 U.S.C. 1956(a)(1)(B)(ii). See Section D, Definitions, Subsection 4, Financial Transaction [8 USCIS-PM D.15(D)(4)].

[^ 9] See 18 U.S.C. 1956(a)(2) and 18 U.S.C. 1956(a)(7).

[^ 10] See 18 U.S.C. 1957.

[^ 11] See Section D, Definitions, Subsection 2, Monetary Instruments [8 USCIS-PM D.15(D)(2)].

[^ 12] See 18 U.S.C. 1956(c)(6), 31 U.S.C. 5312(a)(2), and 12 U.S.C. 3101(7).

[^ 13] See 18 U.S.C. 1956(c)(4).

[^ 14] See 18 U.S.C. 1956(c)(5). See Section D, Definitions, Subsection 2, Monetary Instruments [8 USCIS-PM D.15(D)(2)].

[^ 15] See 31 U.S.C. 5312(a)(2) and 12 U.S.C. 3101(7).

[^ 16] See Section F, Reason to Believe [8 USCIS-PM D.15(F)].

[^ 17] See Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See Matter of Rico (PDF) 16 I&N Dec. 181 (BIA 1977).

[^ 18] See Alarcon-Serrano v. INS, 220 F.3d 1116, 1119 (9th Cir. 2000). See Matter of Rico (PDF) 16 I&N Dec. 181 (BIA 1977).

[^ 19] See 8 CFR 101.3 and 8 CFR 264.2. See INA 289. See Volume 7, Adjustment of Status, Part O, Registration, Chapter 3, Children Born in the United States to Accredited Diplomats [7 USCIS-PM O.3] and Chapter 5, Other Special Laws, Section A, American Indians Born in Canada [7 USCIS-PM O.5(A)].

[^ 20] See INA 245(m)(1). See 8 CFR 245.24(b).

[^ 21] See INA 102. See 22 CFR 41.21(d)(2). For more information on limited application of ineligibilities to officials and employees of foreign governments and international organizations, see 9 FAM 402.3.

[^ 22] For more information, see Volume 9, Waivers and Other Forms of Relief, Part, A, Waiver Policies and Procedures, Chapter 2, Forms of Relief [9 USCIS-PM A.2].

[^ 23] See INA 245(h)(2)(B). See 8 CFR 245.1(e)(3)(v). See Volume 7, Adjustment of Status, Part F, Special Immigrant-Based Adjustment, Chapter 7, Special Immigrant Juveniles, Section C, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM F.7(C)(4)].

[^ 24] See INA 245(l)(2). See 8 CFR 245.23(a)(5) and 8 CFR 245.23(b)(4). See Volume 9, Waivers and Other Forms of Relief, Part O, Victims of Trafficking, Chapter 5, Waivers for T Nonimmigrants Applying for Adjustment of Status [9 USCIS-PM O.5].

[^ 25] See INA 209(c). See 8 CFR 209.1(f). See Volume 7, Adjustment of Status, Part L, Refugee Adjustment, Chapter 3, Admissibility and Waiver Requirements [7 USCIS-PM L.3].

[^ 26] See INA 209(c). See 8 CFR 209.2(b). See Volume 7, Adjustment of Status, Part M, Asylee Adjustment, Chapter 3, Admissibility and Waiver Requirements [7 USCIS-PM M.3].

[^ 27] See INA 245A(d)(2)(B).

[^ 28] See INA 249. See Volume 7, Adjustment of Status, Part O, Registration, Chapter 4, Aliens Who Entered the United States Prior to January 1, 1972, Section D, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM O.4(D)(4)].

[^ 29] See Pub. L. 100-202 (PDF), 101 Stat. 1329, 1329-183 (December 22, 1987), as amended by Pub. L. 101-167 (PDF), 103 Stat. 1211 (November 21, 1989); Pub. L. 101-513 (PDF), 104 Stat. 1979 (November 5, 1990); Pub. L. 101-649 (PDF), 104 Stat. 4978 (November 29, 1990); and Pub. L. 102-232 (PDF), 105 Stat. 1733 (December 12, 1991). See Volume 7, Adjustment of Status, Part P, Other Adjustment Programs, Chapter 9, Amerasian Immigrants, Section C, Eligibility Requirements, Subsection 3, Admissibility and Waiver Requirements [7 USCIS-PM P.9(C)(3)].

[^ 30] See INA 210(c)(2)(B).

[^ 31] See INA 244(c)(2)(A). See 8 CFR 244.3.

[^ 32] See Section 203(b) of NACARA, Pub. L. 105-100 (PDF), 111 Stat 2198 (November 19, 1997).

[^ 33] For more information on adjustment of status, see Volume 7, Adjustment of Status [7 USCIS-PM].

[^ 34] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). For more information, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4].

[^ 35] See INA 291.

[^ 36] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014).

[^ 37] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence [1 USCIS-PM E.6].

[^ 38] For more information, see Part J, Fraud and Willful Misrepresentation [8 USCIS-PM J].

[^ 39] See 8 CFR 103.2(b)(16).

[^ 40] When a benefit requestor is aware of the information that USCIS may use to make an adverse determination because the benefit requestor provided the information or the information was provided in support of another benefit request filed by the same requestor, USCIS may, but is not required to disclose information in a detailed description before issuing a final decision. See 8 CFR 103.2(b)(16)(i). See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 6, Evidence, Section F, Requests for Evidence and Notices of Intent to Deny, Subsection 4, Notices of Intent to Deny [1 USCIS-PM E.6(F)(4)] and Section G, Derogatory Information Unknown to the Benefit Requestor, Subsection 1, Documents and Information That USCIS Cannot Disclose  [1 USCIS-PM E.6(G)(1)] and Subsection 3, How USCIS Discloses Derogatory Information [1 USCIS-PM E.6(G)(3)].

[^ 41] The inadmissibility ground under INA 212(a)(2)(I) applies to any alien seeking a benefit which requires an inadmissibility determination. However, the guidance outlined in this subsection is intended for USCIS officers and does not include guidance for other agencies that may also make inadmissibility determinations. Some classifications of aliens may qualify for an exception or exemption from this ground of inadmissibility, and an inadmissibility determination is not required for those aliens. See Section G, Exceptions, Exemptions, and Waivers of Inadmissibility, Subsection 1, Exceptions [8 USCIS-PM D.15(G)(1)], and Subsection 2, Exemptions [8 USCIS-PM D.15(G)(2)].

[^ 42] See Section D, Definitions [8 USCIS-PM D.15(D)].

[^ 43] See 18 U.S.C. 1956(c)(7).

[^ 44] See Section G, Exceptions, Exemptions, and Waivers of Inadmissibility, Subsection 3, Waivers [8 USCIS-PM D.15(G)(3)].

[^ 45] See Section H, Adjudication, Subsection 4, Evidence [8 USCIS-PM D.15(H)(4)].

[^ 46] The inadmissibility ground under INA 212(a)(2)(I) applies to any alien seeking a benefit which requires an inadmissibility determination. However, the guidance outlined in this subsection is intended for USCIS officers and does not include guidance for other agencies that may also make inadmissibility determinations. Some classifications of aliens may qualify for an exception or exemption from this ground of inadmissibility, and an inadmissibility determination is not required for those aliens. See Section G, Exceptions, Exemptions, and Waivers of Inadmissibility, Subsection 1, Exceptions [8 USCIS-PM D.15(G)(1)], and Subsection 2, Exemptions [8 USCIS-PM D.15(G)(2)].

[^ 47] See Section G, Exceptions, Exemptions, and Waivers of Inadmissibility, Subsection 3, Waivers [8 USCIS-PM D.15(G)(3)].