Under 8 U.S.C. § 1182(a)(2) aliens who 'engage in,' or who have 'engaged in' prostitution or commercialized vice within the past 10 years are inadmissible.
However, under 8 U.S.C. § 1182(h) the Attorney General has discretion to grant waivers.
The following grounds for waivers are often particularly applicable to victims of sex trafficking:
8 U.S.C. §1182(d) a waiver of inadmissibility may be granted for victims of severe trafficking in persons, if it is in the national interest, and if the inadmissibility was caused by or incident to the trafficking, except for inadmissibility due to security related grounds, international child abduction, or former citizens who renounced citizenship to avoid taxes. Cross reference 8 U.S.C. § 1101(a)(15)(T) for criteria to identify victims of human trafficking.
Also, under 8 U.S.C. § 1182(d) any grounds of inadmissibility, except participation in Nazi persecutions or genocide, may be waived if the alien is a non-immigrant witness with information about a crime or terrorism. Cross reference 8 U.S.C. § 1101(a)(15)(U) and 8 U.S.C. § 1101(a)(15)(S) for criteria to identify qualifying victims of crimes or witnesses.
22 C.F.R. § 40.24 defines 'prostitution' as sexual intercourse for hire, but it defines 'engaged' in prostitution as a 'pattern of behavior' or a 'deliberate course of conduct' requiring both continuity and regularity of this conduct. Consequently, "casual or issolated acts" of prostitution do not necessarily mean an alien has 'engaged in' prostitution for immigration purposes and the alien is not necessarily inadmissible. However, it does not matter if the prostitution occurred in a foreign country where prostitution was legal at the time, the alien is still ineligible for admission to the United States. It also provides an individual is only inadmissible if engaged in prostitution in the past 10 years.
8 C.F.R. § 212.4 provides procedural requirements for various grounds of inadmissibility.
Waivers for victims:
Title 8 C.F.R. § 212 provides for applications for victims of trafficking and other crimes.
Matter of M--, 7 I. & N. Dec. 251, 1956 WL 10267 (B.I.A. 1956) (holding an alien is not inadmissible when the alien engages in prostitution under duress).
Matter of C--, 7 I. & N. Dec. 432, 1957 WL 10541 (B.I.A. 1957) (holding an alien is not inadmissible for receiving proceeds of prostitution when the alien was paid for services as a nurse promoting health rather than prostitution).
Kepilino v. Gonzales, 454 F.3d 1057 (9th Cir. 2006) (holding alien's conviction for prostitution under Hawaii's statute did not render her inadmissible because the statute criminalized a range of conduct not limited to sexual intercourse for hire and it did not require a showing that the alien engaged in a pattern of such conduct).
Hansen v. Haff, 291 U.S. 559 (1934) (holding mere extramerital affairs, short of concubinage, are not included in the statute excluding aliens from coming into the U.S. 'for the purpose of prostitution or for any other immoral purpose.') (This case has received some negative treatement in lower courts but it has not been over-ruled as yet).
U.S. v. Bitty, 208 U.S. 393 (1908) (holding it is a crime to import an alien woman to live as a concubine because this is an 'immoral purpose').
