State Department Updates Regulations on Pardons Affecting Visa Ineligibility

The Department of State (DOS) published a final rule amending 22 CFR Part 40 regarding the effect of certain pardons on criminal-related grounds of visa ineligibility. This final rule, effective August 22, reflects the DOS’s agreement with the Seventh Circuit Court of Appeals in its recent opinion in Wojciechowicz v. Garland. The DOS finds that the court’s analysis regarding the lack of underlying authority in the Immigration and Nationality Act (INA) giving effect to such pardons extends to the Department’s own regulation at 22 CFR 40.22(c) regarding ineligibility for multiple criminal convictions.

The Rule’s Background and Rationale

For decades, the DOS’s regulations at 22 CFR 40.21(a)(5) and 40.22(c) have provided that a full and unconditional pardon from a U.S. state governor could remove a ground of visa ineligibility related to convictions for a single crime involving moral turpitude or for multiple criminal convictions. However, the Seventh Circuit’s decision in Wojciechowicz directly challenged this long-standing policy. In that case, the court determined that the INA, as amended by Congress, does not contain a statutory provision that gives effect to a gubernatorial pardon for inadmissibility under INA § 212(a)(2)(A)(i) or INA § 212(a)(2)(B). The court ruled that an agency regulation cannot override a clear statutory text.

The new final rule from the DOS agrees with this legal reasoning. The DOS is amending its regulations to align with the court’s finding that Congress did not provide a statutory exception for state pardons for certain criminal-related inadmissibility grounds. As a result, the Department is now explicitly stating that a state-level pardon does not remove visa ineligibility for these specific criminal convictions.

Implications for Visa Applicants

The most significant change is the explicit distinction the rule makes between state pardons and presidential pardons. The INA provides a statutory exception for presidential pardons, but not for pardons granted by a state governor. The final rule removes the language that previously gave effect to gubernatorial pardons for inadmissibility under INA sections 212(a)(2)(A)(i) and 212(a)(2)(B), while retaining the provision for presidential pardons.

This means that a visa applicant who has been convicted of a crime involving moral turpitude or multiple criminal convictions that would otherwise make them inadmissible will not have that inadmissibility waived simply by obtaining a pardon from a state governor. The rule implements the Seventh Circuit’s interpretation, making it the official policy of the Department of State and resolving the conflict between the agency’s regulations and the INA’s statutory text.