The Role of Culture in Visa Denials.

I recently wrote a blog regarding the OPT scandal advising the victims that “surrender is not an option”, that they needed to be proactive in seeking to resolve the potential drastic consequences.  That thought came to mind again when a gentleman contacted me a few weeks ago about his wife’s visa problem.  She had been denied an immigrant visa and permanently barred from the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The stakes for him could not be much higher: his wife may never be able to join him in the US unless an immigrant waiver would be approved.  Yet in talking to him and reviewing the case documents, it was not clear why she had been accused of making a willful, material misrepresentation.    I told him that the consular officer should be contacted and asked to provide a clarification about why this draconian decision had been made. To me, this was simple. Yet, his response was stunning: “I don’t want to do that because I don’t want to make them mad at me.”  His wife may never be able to join him in the US and he was worried about angering a consular official!

This mindset is actually not uncommon.  The idea that a consular officer would be offended and somehow retaliate for what is in essence doing his job is much more widespread than one would think. There is obviously a cultural element: do not question or challenge authority; defer to an official’s decisions; do not take any action which may prompt a punitive response.  Asking for a clarification would be viewed as being “aggressive”, so “best” to take the opposite tack – one of passivity.  There is a (unrealistic) hope that if one waits long enough, the consul will just change his mind. Or the denied applicant looks for some “informal” channel – a friend of a friend who “knows” someone at the embassy – to try to get the decision changed.  Or to contact a visa “consultant” who promises to “fix” the problem – for $10,000 up front.

In handling such cases for more than 25 years, I can say with certainty that these informal channels never work and that the “fixers” are in fact scammers.  I know that if the applicant does not exercise his legal rights to seek clarifications or request reconsideration of erroneous decisions, nothing will change.  I have had potential clients consult with me, ignore my advice, take no action for 5 years, and then contact me again 5 years later to see if anything could be done.  Where have you been for 5 years?  It is always easier to challenge a visa decision when it has just been made.

You are dealing with the American bureaucracy, so it is necessary to adopt the American mindset: you have legal rights; you have paid government processing fees; you are entitled to assert those rights; and the US Government must address your assertion of those rights – reasonably and with a view towards making an accurate decision. Doing nothing, in the words of the Talking Heads, is a “Road to Nowhere”. To avoid going to this Visa Nowhere Land, you need to assert your rights.  It is as simple as that.

Feel free to contact us to discuss your visa problem.

Posted in 212(a)(6)(C), Misrepresentation, Optional Practical Training (OPT), Request For Reconsideration, Rights of Visa Applicants, Visa Denial, Visa Refusal, Visa Rights | Leave a comment

AzTech, Integra Technologies, Aandwill, and Wireless Update III

We continue to receive a surge of questions from those who have been adversely impacted by the situation surrounding AzTech, Integra, Aandwill, Wireless, and other questionable OPT-related companies. Interestingly, we have also been contacted by those who have not felt any adverse consequences yet nor are aware of any impact, but potentially may have some exposure because of their OPT past.  What should they do?  Reaching out to a lawyer is a good start.

Without stating the obvious, these individuals may already have been impacted; they just don’t know it yet.  In the eyes of the government, their mere association with a suspect OPT organization opens the door for adverse action: visa revocation; denial of a future USCIS H-1B or green card petition; refusal of an employment authorization or change of status or adjustment of status application; the opening of removal proceedings in the US; expedited removal and/or the imposition of a permanent bar at an airport or other point of entry; and/or a visa refusal or finding of permanent inadmissibility under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act.  Those outside the US are more at risk because of their location: they have fewer rights than those located in the US.

Even if you have not been contacted by ICE or received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) or Revoke (NOIR), one should not take that as a sign that all is OK. If you have long-term plans for the US and were associated with one of these companies, you should not rest on your laurels.  It may just mean that the government has not reached your case yet or that you do not have a pending application or petition for an immigration benefit.  You should use this extra time to plan for what may happen next – to educate yourself about your rights and what preemptive steps you can take to prevent adverse action from being taken.  As you know, the visa and immigration processes can take many years and the question of OPT compliance can arise at any point during that time.  Even marriage to a US citizen or work visa holder may not save your immigration status.

By planning now you can protect yourself against future misrepresentations in filings with the government, for example, in a resume.  By planning now you can know what to do if ICE shows up on your doorstep or at your workplace. By planning now you can know the risks that you run by leaving the US or submitting a future application or petition (e.g., if you switch employers). By planning now you can know whether to inform your employer or contact your DSO.

Please feel free to contact us to discuss your situation.

Posted in 212(a)(6)(C), Aandwill, Adjustment of Status, AzTech, Change of Status, Expedited Removal, Immigration and Customs Enforcement (ICE), Integra Technologies, Misrepresentation, Notice of Intent to Deny (NOID), Notice of Intent to Revoke (NOIR), Optional Practical Training (OPT), Request for Evidence (RFE), Revocation, STEM OPT Extension, Student Visas, Visa Revocation, Wireclass | Leave a comment

Green Card Holder Stranded Outside the US Due to COVID-19

As more and more individuals have found themselves stranded outside the US due to COVID-19, the question for permanent residents is more than mere inconvenience.  A US legal permanent resident is bound by fixed time frames. Specifically, an absence from the US of more than six months consecutively may lead to a presumption of an abandonment of US residence. An absence from the US of more than 1 year may impact the validity of the I-551 green card.

In the latter situation, US law provides for a special visa: SB-1 Returning Resident Visa.  The SB-1 process actually involves two steps: at the nearest US consulate, the permanent resident submits 1) a DS-117 application to determine whether he or she meets the SB-1 criteria, and if approved 2) an immigrant visa application to determine whether the individual is admissible to the United States.  For the SB-1 part of the process, the applicant will submit to the consular officer evidence reflecting 1) continuous ties to the United States; 2) an intent to return to the US when the applicant departed the United States; and 3) circumstances beyond the applicant’s control which led to the prolonged absence.  If the SB-1 criteria are met, the applicant then goes through the immigrant visa application process. This includes undergoing a medical exam, submitting a police certificate, and providing documents to show he or she will not be a public charge upon return to the United States.

The stakes for an SB-1 applicant can be extremely high, particularly if the applicant does not have another means to immigrate to the United States. If the application is denied, the consular officer will take the green card. There is no court to appeal to in the event of a denial, although the applicant can ask for reconsideration.   COVID-19 can certainly serve as a valid reason for a protracted stay outside the US; for example, perhaps there are no flights available or it is necessary to take care of an elderly relative in the home country.  But the SB-1 inquiry encompasses not just this factor, but a myriad of other questions that can impact one’s ability to return to the US.  In other words, just because you were stranded outside the US due to the  coronavirus, that does not mean that your application will be automatically approved.

The consul will consider numerous factors.  How long were you outside the US? Did you pay taxes in the US since obtaining your green card? How did you receive your green card? How long have you been a permanent resident?  During this prolonged absence, have you worked outside the United States? Do you have any close relatives in the US?  Do you have a job in the US? Did you ever use public benefits in the United States? Do you own real estate in the US? What was your travel history before this trip outside the US: were you making frequent, extended trips or was this trip an exception? Were you involved in any criminal incidents since the last time you arrived to the US? All of these issues should be reviewed and considered before applying for an SB-1 visa.

We have been handling SB-1 returning resident visa applications for more than 25 years. Please contact us to discuss your situation.

Posted in Abandonment of Green Card, DS-117, Green Card Abandonment, Immigrant Visa, Returning Resident Visa, SB-1 Visa | Leave a comment

The Fat Lady, Stowaways, and Alien Smugglers

“It ain’t over till the fat lady sings…”  The opera expression widely used in sports has taken on a whole new relevance in the immigration world.  No longer are government agencies approving applications and deferring to previously-approved applications or adjudications. Rather, they are reopening past applications – from 3, 5, 10, 15, 20 years ago – searching for misrepresentations, inconsistencies, and loose ends to thwart applications for visas, changes to status, and adjustment of status. You are so close to getting that long-desired visa or green card, but the “fat lady” – in these cases, USCIS and the State Department consular posts – doesn’t want the “opera” to end.

The boundaries are unlimited. Even relatively obscure provisions of immigration law, such as the “stowaway” provision, are being invoked more and more.  A stowaway is someone who obtains transportation without consent and through concealment.  Anyone who enters the US by a commercial ship, for example, without a valid ticket or permission could be considered a stowaway.  This makes adjusting status in the United States after arrival as a stowaway very, very difficult.  If the stowaway brought others on the ship to the US – for example, his children – then USCIS may accuse him of being an alien smuggler, another inadmissibility provision. And any immigration-related application in which the individual does not admit to being a stowaway may be hit with another inadmissibility provision –  misrepresentation.

In short, the USCIS examiner and the consular officer have numerous arrows in their quivers:  any time a person files an application another opportunity is presented for them to re-open previously adjudicated applications. Even at the naturalization stage – 3, 5, or more years after receiving a green card – questions will be raised about how you obtained your green card. Through marriage? Then prove that it was a real marriage. Through a job offer? Then prove that it was a real job offer.  Questions may be raised about maintaining the permanent residency status. Why were you absent from the United States for 9 months? Why were you working outside the US while a US permanent resident? Questions may be raised about the immigrant visa process.  How did you get the visa if the consular officer recommended the revocation of your petition?

That is why it is imperative to save copies of previous applications. That is why it is imperative to know what representations were made in the application forms. That is why you need to refresh your memory before preparing and filing new applications or attending an interview. That is why it makes sense to consult with an immigration attorney before even submitting the application – to understand whether there are any risks of the “fat lady” revisiting your immigration history.

Posted in 212(a)(6)(C), 212(a)(6)(E), Abandonment of Green Card, Adjustment of Status, Alien Smuggling, Change of Status, Consular Officers, Green Card Abandonment, Misrepresentation, Naturalization, Sham Marriage, Stowaway | Leave a comment

Surrender is Not an Option. AZTech, Integra Technologies, Aandwill, and Wireclass Update II

Thank you for all of your questions related to AZTech, Integra, Aandwill, and Wireclass. The dramatic upsurge in questions corresponds to the mass issuance of Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) by USCIS to I-765 STEM extension applicants and H-1B petitioners. The texts of the NOIDs and RFEs are relatively standard. For example, one of the RFEs states:

Provide your complete employment history (including start and end dates) and proof of employment for your initial grant of Optional Practical Training (OPT). Evidence of employment may include but is not limited to:

  • Letters for employer(s) establishing jot title(s), duties, location, pay rate, and number of hours worked per week.
  • Copies of your earning statements/pay stubs.
  • Copies of your W-2s.

If you worked for an employment agency or consultancy, you must provide      evidence of the jobs you worked on and dates worked. Additionally, if you worked remotely (telework, assigned to a client site, etc..) notate such in your employment history.

One of the most frequently asked questions we have received relates to how to respond to the RFE or NOID.  Many I-765 STEM Extension applicants in particular seem resigned to take the “path of least resistance” in their minds. Instead of replying, they are considering withdrawing their applications or not responding and just leaving the US. They believe that somehow someway, at some point down the road, this nightmare will just go away, that their name will magically disappear from the government database and they will have no problem receiving a visa. They could not be more wrong.

Information does not “magically disappear” from a government database. There is no statute of limitations in immigration law. In these cases, the consequences may be permanent. If there is a Section 212(a)(6)(C)(i) finding of a willful, material misrepresentation – and many associated with AzTech, Integra, Aandwill, and Wireclass have already been subject to such a draconian finding – the consequences are a lifetime ban from the United States.  This means that in order to return to the US, you would need a waiver.  Immigrant waivers, in particular, are difficult to obtain.

Realistically, “surrender” should not be an option here. Instead of giving up, it is imperative to use the opportunity that the RFE or NOID presents to respond. As the saying goes, the best defense is a good offense. One of the few positive concessions that USCIS has made to the pandemic is the allowance of an additional 60 days to respond to the RFE or NOID.  This time should be maximized – used diligently and effectively in preparing a comprehensive response based on the facts in your case and the law.

Please feel free to contact us to discuss your situation.

Posted in 212(a)(6)(C), Aandwill, AzTech, F-1 Visa, H-1B, Immigrant Waiver, Integra Technologies, Misrepresentation, Nonimmigrant Waiver, Notice of Intent to Deny (NOID), Optional Practical Training (OPT), Request for Evidence (RFE), Statute of Limitations, STEM OPT Extension, Student Visa, Wireclass | Leave a comment

AzTech, Integra Technologies, Wireclass and Aandwill Update

Thank you for your phone calls. After speaking with so many of you, it has become obvious that those who were associated with AzTech, Integra Technologies, Wireclass and Aandwill did so with legitimate intentions and the goal of full compliance with the OPT requirements.  While the common thread binding most of you is a visa revocation, there are several categories of individuals who have been impacted, including:

1)      those in the US who are beneficiaries of a pending H-1B petition and USCIS has issued a Request for Evidence (“RFE”) or Notice of Intent to Deny (“NOID”) related to their prior OPT experience and/or visa revocation;

2)      those in the US who are applying for STEM OPT extensions and USCIS has issued a RFE or NOID related to their prior OPT experience and/or visa revocation;

3)      those who attempted to enter the US with a visa and Customs and Border Protection subjected them to expedited removal and a decision to permanently bar them under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act;

4)      those who have already been subject to a Section 212(a)(6)(C)(i) decision;

5)      those in the US whose visas were revoked, but have not had any other adverse action taken against them yet;

6)      those who were associated with at least one of these companies but have not been made aware of any adverse action yet.

Because of the time limits inherent with an RFE or NOID, individuals who fall into Categories 1 and 2 should contact a lawyer immediately.  Category 1 individuals (H-1B beneficiaries), in particular, need their own legal counsel because they are only beneficiaries of the petition; the employer-petitioner will decide how to respond to the RFE or NOID and act in its best interests, not necessarily yours.

Because of the permanent bar inherent to a Section 212(a)(6)(C)(i) determination, individuals in Categories 3 and 4 should also seek legal help immediately to challenge that decision. Experience shows that the sooner that such decisions are challenged, the more likely they are to succeed.

Finally, individuals in Categories 5 and 6 should also be proactive in protecting their legal rights and preventing Section 212(a)(6)(C)(i) decisions from being entered.  There are steps that should be taken now to assert these rights and forestall adverse government action against you.

Feel free to contact us to discuss your situation.

Posted in 212(a)(6)(C), Aandwill, AzTech, CBP, Consular Officers, Expedited Removal, H-1B, Integra Technologies, Notice of Intent to Deny (NOID), Optional Practical Training (OPT), Request for Evidence (RFE), US Consulate Chennai, US Consulate Hyderabad, US Embassy Delhi, Visa Revocation, Wireclass | Leave a comment

COVID-19, Extensions of Status, and Section 222(g) of the Immigration and Nationality Act

With the raging of the pandemic, cancelled flights, and travel restrictions, thousands of visitors have been stranded in the United States.  While some legal relief has been provided for delayed departures for those who entered without visas under the Visa Waiver Program, very little has been discussed about those who entered the US with visas and have been unable to leave within the allotted time frame.

As a reminder, holders of B-1 and B-2 visas are usually granted 6 months of authorized stay when they arrive in the US.  If a person overstays this authorized time frame, the visa becomes void under Section 222(g) of the Immigration and Nationality Act. What this means is that even if the visa itself has validity time remaining, it nevertheless becomes null and cannot be used. For example, if in June 2019 a B visa was issued for 10 years through June 2029, and the visa holder entered the US on January 31, 2020, and remained beyond the authorized stay of July 31, 2020 indicated in the I-94 form, the visa is invalidated and generally, cannot be used again.  This means that the individual must return to the home country – the country of one’s nationality – and apply for a new visa.

This section of the law, 222(g), is little known. It flies under the radar because there are no official statistics on how often this occurs and individuals are not denied visas under this section of the law (unless they apply for a new visa in the wrong country), i.e., one is not handed a denial sheet by the consular officer referencing Section 222(g).  However, 222(g) is indirectly raised by the Customs and Border Protection inspector when an individual shows up with a facially valid but legally invalid visa.  The person is denied entry under Section 212(a)(7) of the Immigration and Nationality Act for not having proper entry documentation and the visa is revoked.

Readers of this blog may know that once a visa is invalidated, it may be very difficult to convince the consular officer to issue another visa after spending a protracted period of time in the US – regardless of the circumstances.  The visa is usually denied under Section 214(b), along with the bitter consular refrain to re-apply in 2-3 years “after you re-establish ties to your” home country.  Thankfully, there are exceptions to this 222(g) nullification rule.

The most prominent and frequently used exception is the timely and nonfrivolous application for an extension of status in the United States.  So in the above example, as long as the visa holder a) filed an I-539 extension application to USCIS before July 31, 2020, citing to legitimate grounds for the extension (e.g., the pandemic made it impossible to return home) and b) did not violate the terms of the status (e.g., illegally working), the stay of the individual becomes authorized during the pendency of the application. Even if the individual must leave the United States before a decision on the application is made and there was no violation of status, the visa will remain valid.  If the individual’s extension of status application is denied and the I-94 expired, then the visa may become invalidated under Section 222(g).

There are other exceptions.  Even if the visa was invalidated under Section 222(g), Customs and Border Protection at the airport or other port-of-entry has the discretion to process an “unforeseen emergency waiver” under Section 212(d)(4) of the Immigration and Nationality Act.  Humanitarian or significant public interest parole may also be granted by CBP.  A new visa can be applied for in a third country (not the country of nationality) if there are “extraordinary circumstances”.

Obviously, the stakes are high.  Whether it will become necessary to apply for another visa and possibly encounter a refusal or to be able to continue to use the current visa can be critically important.  Visiting children and grandchildren, being able to study, negotiating contracts or opening a business – each could be negatively impacted for a long, long time by a lack of planning now. Contact us to discuss your situation.

Posted in 212(d)(4), 214(b), 222(g), Extension of Status, Humanitarian Parole, I-94, Visa Revocation | Leave a comment

Visa Revocations and OPT

The consequences of the Immigration and Customs Enforcement (ICE) investigation of the US companies Findream, Sinocontech, AzTech, Integra Technologies, Wireclass, and Aandwill are now becoming evident. Thousands of students and young professionals, primarily Chinese and Indian, have had their visas revoked because of their past association with these companies.  Worse, it appears that the US Government has presumed that these individuals were aware of the fraudulent nature of the offers of training to comply with the Optional Practical Training program requirements and is entering decisions to permanently bar them from the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (“6C”). For many of these individuals, it does not have to be this way.

A US government official can only make this determination based on an individualized review. Everyone’s circumstances were different. What was his or her specific intent at the time of accepting the training offer? Was he or she aware that the offer was a sham? When work or training did not materialize, what steps did the individual take to disassociate from the company? How quickly was that done?

For those who have already left the United States, the problem with challenging these 6C decisions may be that the consular officer will reflexively defer to the determination of ICE.  For those who tried to use their visas to re-enter the US before revocation, they may have been subject to expedited removal and 6C decision by Customs and Border Protection (“CBP”). While a decision by one of these agencies can be challenged, it is much more difficult to do so from outside the United States.

For those who are in the US either engaged in F-1 Optional Practical Training, in H-1B status, or some other status, this problem sooner or later will rear its ugly head. It is possible ICE will initiate deportation proceedings or USCIS may take adverse action on a benefit request (e.g., H-1B petition, change of status application, immigration marriage petition).  Even if nothing happens in the short-term, it most likely will down the road when the “hit” in the government’s database “detonates”. There is no statute of limitations in immigration law.

Fortunately, there are options. It is necessary to think through those options now – to act instead of react.  Hoping and praying that this will go away is not a strategy; it is only a plan to fail.  Future employment, future marriage, the future of one’s children can all be impacted by a 6C decision.  It is no exaggeration to say that whether one will spend the rest of days in the home country or the US may depend on actions taken now.   How to deal with a current employer who is unaware of this potential problem? Should you leave the United States or stay? What does ICE know about your specific situation? What are the chances of challenging the decisions? How likely is a waiver to be approved? How will it impact a current STEM OPT?  These are all questions that we have addressed for individuals impacted. Please sign up for a consultation to discuss your options.

Posted in 212(a)(6)(C), Aandwill, AzTech, CBP, Expedited Removal, Findream, Immigration and Customs Enforcement (ICE), Integra Technologies, Misrepresentation, Nonimmigrant Waiver, Optional Practical Training (OPT), Sinocontech, Visa Revocation, Wireclass | Leave a comment

A Visa Applicant’s Bill of Rights – What the Department of State and Your Local US Embassy/Consulate Often Do Not Want You to Know

For visa applicants, the cards seem to be stacked against you.  Among the hurdles a visa applicant must face:

  1. The law places the burden on the visa applicant to prove eligibility for the visa and that he or she is not inadmissible to the United States.
  2. There are inadequate consular resources; at busy posts, consular officers can only allot a few minutes to a visa adjudication.
  3. There is no formal administrative appeals process of a visa denial (no Administrative Appeals Office, Board of Immigration Appeals, Board of Alien Labor Certification Appeals).
  4. With limited exception, there is no judicial review of visa decisions because of the  doctrine of consular reviewability.
  5. There is limited public accountability: no Department of State (DOS) Visa Ombudsman, no formal Complaint Procedure, and no formal recusal process.
  6. Section 428 of the Homeland Security Act grants the Department of Homeland Security (DHS) a vital role in the visa process and the public has very limited contact with DHS decisionmakers.
  7. Form visa refusal sheets are just that – boilerplate forms with no factual substantiation applicable to your application.
  8. Section 222(f) of the Immigration and Nationality Act shields from disclosure visa-related information and materials (usually making Freedom of Information Act requests futile).
  9. The role of the Visa Office at the Department of State is primarily limited to legal issues; factual issues are within the exclusive domain of consular officers.
  10. There is limited consular training in US immigration law, one of the most complicated areas of law.
  11. In nonimmigrant visa cases, particularly in high fraud countries, consular officers are trained to ignore supporting documents.
  12. There is no available recording of visa interviews, which can lead to a “he said, she said” situation.
  13. Consular officers sometimes profile individuals.
  14. Consular officers err on the side of caution.
  15. Advisory Opinions of the Visa Office to consular officers on legal topics are not published, so there is no transparency or centralized database as to how a particular issue will be handled.
  16. Consular officers are located outside the US – unaccountable to and immune from the scrutiny of US public opinion, media, and Congress.

But there is hope….

In fact, visa applicants have a whole range of rights, some of which the Department of State and consular posts outside the United States do not want you to know about.  For example, the American Immigration Lawyers Association (AILA) requested DOS on at least two occasions to revise its form visa refusal sheets to apprise denied immigrant visa applicants of the right to seek reconsideration of the denials (similar to an appeal). This right is embedded in the Department of State’s own regulations, yet DOS and consular posts do not deign to inform refused applicants of this basic right.  (The author welcomes examples, if such exist, of another US government agency deliberately failing to provide appeal right notifications to applicants against whom adverse action has been taken, particularly those who have paid processing fees.)

This is just the beginning.  A visa applicant has the right to:

  1. have “full consideration given to any evidence presented to overcome a presumption or finding of ineligibility.” The visa applicant is to be accorded “every reasonable opportunity to establish eligibility to receive a visa.”
  2. a “sound”, “non-arbitrary” and “as accurate as possible” visa decision by the consular officer.
  3. be informed of the legal and factual basis of an inadmissibility finding.
  4. not be discriminated against based on race, sex, nationality, place of birth, or place of residence. (For an example of consular nationality-based discrimination, see the author’s ILW article on the Tsar-Consul of Uzbekistan.)
  5. request the intercession of the Visa Office if a legal error was made in the disposition of an immigrant or nonimmigrant visa application. The consul must defer to the legal opinion of the Visa Office because “[r]ulings of the Department concerning an interpretation of law, as distinguished from an application of law to the facts, shall be binding upon consular officers.”
  6. Visa Office review of a consular refusal to recommend the granting of a nonimmigrant waiver application in certain situations (e.g., where urgent humanitarian, medical, national security or foreign relations issues are implicated).
  7. non-readjudication of a USCIS-approved petition.  This means that after USCIS has approved an employment petition (except for E visas), the consular officer may not substitute his opinion for the decision of USCIS.  A consular officer must defer to USCIS unless he finds fraud, a material misrepresentation, new information which might have affected the initial decision, or that the applicant is not admissible or eligible for the visa.
  8. have his/her petitioner respond to a consular recommendation for revocation when USCIS sends out a Notice of Intent to Revoke the petition approval.
  9. a decision on a visa application. A consular officer cannot withhold a decision or “sit on” an application interminably. A decision must be made within a “reasonable time.”
  10. receive certain visa-related documents upon request (documents submitted by applicants, such as visa application and sworn statement). US consular posts in India are particularly resistant in this regard, first coercing “Voluntary Statements” from applicants and then attempting to conceal the contents of those Statements from the applicants when they request copies.
  11. not to be profiled. The consular officer cannot refuse an applicant based on fitting a demographic profile, such as being “young” or “single.”
  12. to assistance of third parties, such as lawyers. The applicant’s US-based petitioner, relative, or friend may also contact a member of Congress for assistance in a visa case.
  13. consular compliance with the DOS Customer Service Statement (e.g., the applicant has the right to be treated with respect):
  14. to file a lawsuit in US Federal Court, for example, to challenge consular inaction on a visa application, a consular or DOS practice or policy, a consular failure to act on a request for reconsideration, or action by another government agency leading to a visa denial.
  15. not to be punished for perceived visa-related abuses by other persons (e.g., a change of status or visa overstay by a relative), i.e., “punishment” is not a legal basis for a denial.
  16. submit a new nonimmigrant visa application after a refusal, regardless of how little time has elapsed since the denial.
  17. be understood during the visa interview.  This is common sense, but sometimes simple misunderstandings and consular lack of proficiency in the local language can lead to a visa denial.

This list is not exhaustive: a visa applicant has more rights.  An article can be written on each of the above-mentioned rights, with some of the rights open to interpretation: What is a “reasonable opportunity to establish eligibility?” What does it mean to “profile” an applicant? What is a “reasonable time” to process a visa application?

But what should be clear from the above is that one cannot count on the Department of State or the local embassy or consulate to inform you of your visa rights.  The power of the rights accorded to the visa applicant comes only with their knowledge and timely exercise.  Don’t lose an opportunity to exercise your visa rights.

Contact Ken White if you have any questions.

Posted in Consular Officers, Department of State, Foreign Affairs Manual, Nonimmigrant Waiver, Notice of Intent to Revoke (NOIR), Petition Revocation, Request For Reconsideration, Rights of Visa Applicants, Section 222(f) Immigration and Nationality Act, Section 428 of Homeland Security Act, US Consulate Hyderabad, US Embassy Delhi, US Embassy Tashkent, Visa Revocation, writ of mandamus | Leave a comment

Trump Executive Order Bans Most Immigration for 60 Days

Regardless of country, President Trump has banned immigration of those outside the United States as of midnight on April 23, 2020.  This means that a) those seeking admission to the US as immigrants, b) are located outside the US and c) do not yet have an immigrant visa or a travel document valid beyond April 23, 2020 are banned entry to the United States for 60 days.  There are certain classes of individuals that this ban does not apply to, i.e., they are exempted: 1) those who are green card holders (lawful permanent residents); 2) those applying for adjustment of status within the United States; 3) EB-5 immigrant investors and their dependents; 4) certain medical professionals; 5) spouses and children under 21 of US citizens; and 6) other narrow categories (e.g., those entering for law enforcement or national security purposes; certain relatives of US Armed Forces members; certain Iraqi and Afghan employees of the US government).

Practically speaking, the ban will have limited effect because the Department of State has already suspended visa services and it is unclear when it will actually re-open embassies to process visas.  If the consular posts reopen within 60 days, it would appear that consular officers will not be issuing immigrant visas to potential immigrants such as Diversity Lottery winners, family immigrants, and immigrants with job offers in the US.  It is possible that Trump will extend the ban beyond the 60 day period.

The Trump Administration will also review nonimmigrant employment visas over the next month to determine if further restrictions are warranted on holders of and applicants for H-1B, L, O-1 and other work visas.

It is quite possible that this new ban will be challenged in court very soon.  Stay tuned.

Posted in Adjustment of Status, Department of State, Diversity Visa Lottery, DV-2020, EB-5, Family Immigration, H-1B, Immigrant Visa, L-1 Visa, O-1 Visa | Leave a comment