Although it has always been a potential issue, the presence of tattoos and their impact on visas has become more prevalent these days. The problem frequently occurs during the consular processing process where an applicant is applying for an immigrant visa abroad to come to the US. However, it is certainly not limited to US posts in foreign countries. The issue also arises in the context of Deferred Action for Childhood Arrivals or “DACA” applications. Although tattoos are culturally acceptable in this day and age, the fact is that the very presence of one on a visa applicant can potentially impact or possibly derail his /her visa application.
Interestingly, you can scour the Immigration and Nationality Act and you will not find tattoos as a basis of inadmissibility under Section 212. So, tattoos are not in and of themselves the problem. The problem is in how they are perceived. In the Department of State’s (“DOS”) eyes, the presence of tattoos may indicate that the applicant has participated or may be a member of a gang. And gang membership, according to DOS, gives rise to a denial under INA 212(a)(3)(A)(ii), which permits the government to deny admission to a foreign national seeking to enter the US to engage in any unlawful activity. Although it seems unfair, and most tattoos are likely innocent expressions rather than gang badges, many consular officers tend to overreact and hold up cases citing a “reason to believe” that the individual is affiliated with gang activity. Even if the tattoo is not directly visible or conspicuous where a consular officer might see it, a panel physician, who must usually perform a medical examination prior to the interview, might see one and note the presence of same. There are even reports out there that some doctors will also assume that individual may have or may be using drugs because he/she has a tattoo. So, besides people wrongly inferring gang membership, there is also the danger of being wrongly associated with drugs.
With reference to DACA applications, USCIS does not directly use tattoos to deny applications. However, if USCIS learns that the applicant has belonged or is currently affiliated with a gang, the application will likely be denied as a mater of discretion on the basis that the individual poses a national security threat or risk to public safety, notwithstanding the fact that gang membership is not per se a direct bar of ineligibility.
The takeaway here is that any potential visa applicant should not overlook his/her personal appearance during the visa process, even if there does not appear to be a legal issues. If you have or have had any tattoos on your body and you are not already a US Citizen or lawful permanent resident, you should have a frank discussion with your attorney to assess any potential ramifications.
The above is general information/opinion only and does not constitute legal advice. It is not intended to substitute for legal counsel nor does it create an attorney client relationship.