FAQ on New Public Charge Rules – Part 1: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

What are the new Public Charge Rules?

Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible immigrants who are “likely at any time to become a public charge”.  Practically speaking, in the past, if the sponsor in the United States had sufficient income (more than the poverty level) or assets, then the immigrant successfully received the visa or adjusted status. Now, the focus will be on the immigrant him or herself.

The examiner will consider the personal circumstances of the immigrant: is it likely that he or she will become a public charge at any time in the future?  The circumstances to be reviewed include age, health, family size, financial resources, education and skills, and sponsor.  In short, this rule will adversely impact the elderly or soon-to-be-retired; those with medical conditions; the less educated; those with large families; those with few job prospects in the United States; those who do not speak English; and those with few financial resources.  Having a joint sponsor will also have little positive impact unless there is a close family relationship with the applicant.

To Whom Do the New Rules Apply?

They will apply to those applying for immigrant visas and adjusting status to immigrants in the United States.  They will also apply to nonimmigrants in the United States who are extending their current status (e.g., B visitor) and those changing status (e.g., B visitor to student).  The analysis will be different for these two classes: for immigrants, the public charge analysis will be prospective (future), whereas for nonimmigrants it will be retrospective. For nonimmigrants changing or extending status, the public charge rules will be extremely limited, only applying to those who received public benefits in the past for at least 12 months out of 36 months.  Form I-944 will need to be appended to their applications.  For immigrants, the question will be whether it is likely that in the future the immigrant will receive public benefits for 12 months out of a 36 month period.

Who is Exempted?

Refugees, aslyees, VAWA applicants, and other special categories are exempted from these new rules. The rules also do not apply to lawful permanent residents applying for US citizenship (unless had been absent from the US for more than 180 days) or renewing their expired green cards.

What does Public Charge mean?

The term public charge is specifically tied to “public benefits”.  Public benefits include food stamps, housing support (Section 8), Supplemental Security Income, some other assistance programs, and some Medicaid beneficiaries. The following are not considered “public benefits”: emergency Medicaid, benefits received by pregnant women, benefits received by those under 21, student loans and Pell Grants, worker’s compensation, unemployment benefits, Social Security, Medicare, WIC (nutrition program for women, infants, and children), child healthcare, and benefits received by immigrant’s family members already in the US.

What else is considered?

If the sponsor in the US has income at 250% of the poverty guideline, then this should shift the focus away from the applicant and satisfy the examiner.  For example, if the minimum poverty guideline calls for at least $30,000 in income, if the sponsor’s annual income exceeds $75,000, this should meet the burden, unless the applicant has very severe medical conditions.  In addition, if a decision is made that the applicant is inadmissible on public charge grounds, the examiner can offer the applicant the ability to put up a bond (minimum $8,100) as a guarantee, although it is expected that in visa cases this will be very rarely used.

What types of immigrants will be most affected?

Undoubtedly, older parents and siblings of US citizens will be severely impacted.  Spouses of US permanent residents with limited education, English knowledge skills, and employment skills will also be targeted.  Diversity Lottery winners without a university education and with limited English and employment skills are also likely to be adversely affected.

The stakes are high.  For example, once an immigration petition is filed, it becomes harder to obtain a visitor visa.  A failed immigrant visa case will most likely lead to the cancellation of an existing B visa and difficulty in obtaining such a visa in the future.  Because of the high stakes involved, it makes sense to start planning for this public charge question at the start of the immigration process, not the end.  Please contact us to discuss.

Posted in 212(a)(2)(A)(i)(I), 212(a)(4), 212(a)(5)(A), 214(b), Change of Status, Department of State, Freedom of Information Act, P-1, Political Offense Exception, Uncategorized, Visa statute of limitations | Leave a comment

E-2 Visa Denials

One usually does not associate the US Government Accountability Office with “interesting” reports, but last year’s report on E-2 visas was eye-opening.  Of particular note are the reasons why E-2 applicants are denied.  While the report is limited to examining certain countries, it provides critical insight into the thinking of consular officers and obstacles to obtaining E-2 visas.

As a reminder E-2 visas are limited to nationals of countries with whom the United States has commerce and navigation treaties. The full list of countries can be found on the Department of State’s website, with 80% of all E-2 applicants originating from 9 countries: Japan, Germany, UK, France, Canada, Mexico, South Korea, Italy, and Spain. The majority of E-2 visa applicants are related to large investments (>$10 million) – think of managers and essential employees going from Japan to work in a large car plant in the United States.  However, the majority of the actual E-2 businesses in the United States have low investments: 66% of them involved an investment of $200,000 or less (29% for less than $100,000).   These businesses run the gamut, from restaurants to various kinds of franchises, from consulting firms to print shops.  This relatively small investment amount makes the E-2 visa accessible to many, sharply contrasting with EB-5, which now requires a minimum of $900,000 investment.

But smaller investments provoke stricter scrutiny by consular officers. From 2014 to 2018, about 24% of E-2 investors were denied.   While there is no breakdown provided, the percentage of small investment E-2 applicants refused is most certainly significantly higher. The most common reasons for E-2 investor visa denials relate to 1) lack of evidence that the funds are “clean”, i.e., were not obtained through criminal activity; 2) doubts about whether the business in the United States is real, operating, and will be an active commercial enterprise; 3) suspicions about whether the funds have been irrevocably committed to the business; 4) the investment amount is small and a perceived marginality of a business; 5) a lack of investor qualifications to run the business; and 6) consular suspicion of violation of status.

The last three are particularly noteworthy.  If a housewife becomes the E-2 investor, there are going to be questions and concerns about whether she is able to run the business, that perhaps the E-2 is being used merely to relocate to the US. If in the course of setting up the business in the US,  the investor spends substantial time in the US in B status even after the business is up and running, the consul may view him as having worked unlawfully or violating the 90 day rule.  To meet the marginality requirement, it is necessary to show that the business will generate more than enough income to provide a minimal living for the family or will have the future capacity (within 5 years) to make a significant economic contribution.

If an investor fails to satisfy the consular officer on any of the above issues, the consular officer may invoke 214(b) to deny the visa.  In cases of fraud (e.g., a fake lease agreement for the US business) or a material misrepresentation (including a violation of the 90 day rule), the consul may invoke Section 212(a)(6)(C)(i) and a lifetime ban from the US.

It was famously said that “by failing to prepare, you are preparing to fail.” As always, it is best to consult with a lawyer prior to starting the E-2 process.

Posted in 212(a)(6)(C), 214(b), 90 Day Rule, Business Immigration, Consular Officers, E-2, Misrepresentation, Visa Denial, Visa Refusal, Visa Refusal Rates | Leave a comment

No Statute of Limitations in Visa Law – A Distressing New Phenomenon with Tragic Consequences

Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5-7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions.  But there is no statute of limitations in visa/immigration law.

With some exceptions, until recently, this has not been a significant problem.  But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions.  They are re-opening and reconsidering suspected visa violations – with no limitation of time or past consular “exoneration”.  Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago – and denying or permanently barring visa applicants as a result.  This, regardless of whether the person has been receiving visas or not after the alleged violation or suspicion of such a violation.

Take the case of Nikolai.  In 2004, Nikolai received a visa and traveled to the US.  He had originally planned to attend a few car auctions, buy some cars, and return home within a month.  But after a problem with a business partner in the US, he had to find a lawyer to initiate a lawsuit and find a new partner. Instead of staying in the US a month as he planned, he ended up spending 5 months.   A couple of years later, when he applied for a new visa, he was asked questions about why he had stayed for so long.  He answered the questions and provided documents to the consular officer to show what happened with his previous business partner.  After a 5 minute interview, he was granted a new visa.  He used the visa a couple of times – always returning to his home country after short visits to the US.

Fast forward to 2019.  Nikolai had not visited the US for more than 5 years. He settled down, got married, had a couple of kids, and continued to operate his small car dealership.  Deciding to reinitiate his business contacts with the United States, he applied for a new visa.  To his shock, he was asked again about why he had spent so much time in the US in 2004.  When he explained about the fallout with his partner, the lawsuit, and establishing a new business relationship, he was denied under Section 214(b).

Nikolai is not the only unlucky one.  We have consulted with individuals who were recently permanently barred under Section 212(a)(6)(C)(i) for supposed misrepresentations made back in 2010 and 2012. In the first case, the woman received several visas after 2010.  In subsequent visa interviews, she addressed the issue of having a baby in the US and paying the hospital bills. Without a problem, she received visas. 9 years later, the Embassy ignored those visa issuance decisions and accused her of lying in 2010.

These “out-of-the-blue” decisions years later are becoming more and more frequent. This means that the visa applicant should always be prepared for the possibility that questions will be raised about how a visa was used in the past.  Was there illegal employment? Was there a misrepresentation at the time of the visa application?  Were public benefits used?  The stakes for many are high: immigrating to join an American spouse, reunifying with children, lucrative employment in the United States.

In the immortal words of Bob Dylan, the times they are a-changin’. But unfortunately for visa applicants, not for the better. Don’t underestimate consular zeal.  Contact us to discuss your situation.

Posted in 212(a)(6)(C), 214(b), Consular Officers, Department of State, Misrepresentation, Statute of Limitations, Visa Denial, Visa Refusal, Visa statute of limitations | Leave a comment

FAQ on New Birth Tourism Rules

The Trump Administration announced new rules regarding birth tourism, which took effect on January 24, 2020.  Already, misinformation has cropped up. So to provide some clarity, the below FAQ is provided:

Whom do the new rules affect?

They only affect applicants for B visitor visas; they do not impact current holders of visas nor citizens of  Visa Waiver Program countries who can enter the US without a visa.

May current holders of visas and those who hold passports from Visa Waiver Program countries enter the United States to give birth?

The Department of Homeland Security, which include Customs and Border Protection inspectors at ports-of-entry, has not announced any new policies or reinterpretations of allowing entry for those who enter to give birth.  In the past inspectors permitted women to enter the US to give birth as long as they could show the ability to cover the cost of birth.  However, one can anticipate that DHS will announce new rules soon making it more difficult for “birth tourists”.  If new DHS rules are not forthcoming, one can foresee inspectors becoming more strict in allowing visitors to enter the US for the explicit purpose of giving birth.  In any event, birth tourists are well-advised to be honest in their dealings with CBP: even if they are successful in entering the US, at some point in the future, they could be held accountable for any misrepresentations, i.e. their visa could be revoked and a consular officer or CBP inspector could find them inadmissible permanently for lying to a CBP inspector.

Why did the Department of State change its rules?

The Department of State cites to potential security threats in the future, that unfriendly countries could “activate” such US born citizens at some point and use them against the US.  Because such individuals are not screened nor obliged to spend any time in the US, as those who apply for US citizenship through the naturalization process are, DOS believes that this could lead to a backdoor threat from those who have no loyalties to the United States. The Department of State also justified the need for these new rules to counteract scammers and fraud in the visa process, as well as to address the problem of foreign nationals not paying hospital bills, leaving US taxpayers to foot the bills.

Which visa applicants will these new rules apply to?

They only apply to those whose primary purpose for making the visa application is to give birth in the United States. If the consular officer has reason to believe that the visa applicant will give birth during her visit to the United States, then the consular officer will assume that the primary purpose of the visa is to obtain US citizenship for the child.  It is then up to the applicant to overcome this assumption.

The rules do not apply in four specific situations.  Firstly, if the applicant has a different primary purpose – e.g., visit a sick relative or a business conference – then the visa should be issued.  According to the Department of State, “An applicant who is pregnant, who has no desire or no plan to give birth in the United States, would certainly be issued a visa for whatever their other primary purpose of travel is.” In addition, if the applicant’s primary purpose is “medical” – e.g., she may endure complications in the delivery process – then that may allow for issuance of the visa if 1) there is a doctor/hospital letter agreeing to provide for treatment and 2) the visa applicant has the money to cover the expenses.  Thirdly, if a female applicant applies for a visa, is not pregnant, receives the visa, and later becomes pregnant, the new rules do not apply to her.  It is the current intent of the visa applicant that is examined at the time of the visa application. Finally, these new rules do not apply to those applying for student or employment visas: either as the principal applicant or accompanying spouse.

When will the consular officer have reason to believe that the applicant will give birth in the US?

A “reason to believe” means not just being suspicious. There has to be some evidence.  According to the new rules, a consular officer “must not ask a visa applicant whether they are pregnant unless” there is a “specific articulable reason to believe they may be pregnant and planning to give birth in the United States.”  The consular officer is prohibited from asking “all female applicants (or any specific sub-sets of applicants) whether they are pregnant or intend to become pregnant.”  Similarly, the consular officer cannot require women to take a pregnancy test, i.e, “provide evidence that they are not pregnant.”  However, if a woman “looks pregnant” or indicates that she is traveling to the US for medical purposes in her DS-160 form, this may open up questioning by the consular officer.

Posted in 212(a)(6)(C), B Visa, birth tourism, F-1 Visa, Misrepresentation, Public Charge, Revocation, Visa Denial, Visa Refusal, Visa Revocation, Visa Waiver Program (VWP) | Leave a comment

A Green Card Holder and Absent from the US for more than 180 days? Beware.

One of the biggest misconceptions about immigration law is that a green card is the same as citizenship  –only without a passport or the ability to vote. But what many permanent residents do not realize is that they can be deported.  The reasons are many: not only for a conviction of a serious or drug-related crime, but also for abandoning their residency in the United States or becoming a “public charge”.  The question of deportability can come up when applying for naturalization, or after an absence of more than 180 days from the United States.

Imagine a situation where a green card holder who uses public benefits in the US  leaves to visit his home country.  During his visit, his father gets sick and he needs to stay to help take care of his father.   After a 7 month absence from the US, he returns.  Upon his arrival at the airport, the inspector will consider him as a permanent resident. However, because of the absence of more than 180 days, the permanent resident is subject to most of the same general admissibility criteria as a tourist. The admissibility criteria are all-encompassing, including criminal, security, health, and financial issues – Sections 212(a)(2), 212(a)(3), 212(a)(1), and 212(a)(4) of the Immigration and Nationality Act, respectively.  If the airport inspector learns that the permanent resident has used public benefits in the United States, then the inspector can find him inadmissible under Section 212(a)(4) and place him in deportation proceedings.

Or imagine that the airport inspector admits the green card holder back into the United States. Several years later, the green card holder applies to naturalize.  The naturalization examiner has the right to review the admissibility of the green card holder at the time of his arrival back to the US after a 180 day absence, including whether he used public benefits in the United States before his departure.  In other words, not only can the examiner deny the naturalization application, the examiner can also seek to take away his green card and refer him for deportation.

While in either scenario the green card holder has the ability to present his case before an immigration judge who will make the final decision, no one wants to have his or her fate hang by a thread.  No one wants to worry about the possibility of being sent back to his/her home country, one that perhaps he/she immigrated from 5, 10, 20, or more years ago.  While sometimes delays abroad during a visit are unavoidable, and it may become necessary to apply for a special permission to return to the US if the absence is for more than one year (called a returning resident SB-1 visa), one must consider the potential consequences. This is becoming all the more acute with the Trump Administration’s laser-like focus on those who use public benefits – for new immigrants as well as current green card holders.

To consult about your situation, please contact us.

Posted in 212(a)(4), Abandonment of Green Card, Citizenship, Green Card Abandonment, Immigration Judge, Naturalization, Permanent Resident, Public Charge, Returning Resident Visa, SB-1 Visa | Leave a comment

Department of State Releases 2019 Visa Refusal Statistics – and They Ain’t Pretty

Visa refusals continue to skyrocket under the Trump Administration – and it doesn’t seem to matter whether the applicants are from countries considered “friends” or “foes” of the United States.  While the refusal rates for some countries, such as Vietnam, Philippines and Pakistan, have remained relatively stable, other countries have seen a significant jump.  Brazil, Nigeria, Russia, Ukraine, Uzbekistan and China have each seen increases of more than 25% over the past two years, with India and Mexico not far behind.  Below are the visa refusal statistics for B visas for fiscal years 2017-2019.

Country

% of B Visa Applicants Refused in FY-2017 % of B Visa Applicants Refused in FY-2018 % of B Visa Applicants Refused in FY-2019 % Increase from FY-2017 to FY-2019
Brazil 12.34 12.73 18.48 49.75
China 14.57 17 18.22 25.05
India 23.29 26.07 27.75 19.14
Mexico 22.5 24.93 26.66 18.48
Nigeria 44.95 57.47 67.20 49.49
Pakistan 49.4 47.89 48.26
Philippines 25.54 27.07 24.40
Russia 11.61 14.89 15.19 30.83
Turkey 17.86 17.49 19.19 7.44
Ukraine 34.54 40.97 45.06 30.45
Uzbekistan 50.29 61.76 68.06 35.33
Vietnam 24.06 26.2 23.70

 

Posted in B Visa, US Consulate Chennai, US Consulate Guangzhou, US Consulate Ho Chi Minh City, US Consulate Hyderabad, US Consulate Islamabad, US Consulate Istanbul, US Consulate Lagos, US Consulate Mumbai, US Consulate Rio de Janeiro, US Consulate Shanghai, US Embassy Ankara, US Embassy Beijing, US Embassy Brasilia, US Embassy Delhi, US Embassy Karchi, US Embassy Kyiv, US Embassy Manila, US Embassy Mexico City, US Embassy Moscow, US Embassy Saigon, US Embassy Tashkent, Visa Denial, Visa Refusal, Visa Refusal Rates | Leave a comment

Innocent Visa Applicants Applying for Nonimmigrant and Immigrant Waivers

With the dramatic upsurge in consular decisions to permanently bar visa applicants from the United States, the question of applying for an immigrant or nonimmigrant waiver has become more and more acute.  Many immigration lawyers will advise to just accept the decision, admit that you were wrong, say you are sorry, and apply for the waiver. They say that your chances of receiving the waiver will be increased if you admit your guilt and express remorse, even if you did not do anything wrong. But what if you are not “guilty”?  What if you did not commit a material misrepresentation (Section 212(a)(6)(C)(i))? Or engage in alien smuggling (Section 212(a)(6)(E))? Or commit a crime of moral turpitude (Section 212(a)(2)(A)(i)(I))?  Should you admit you were wrong?

Of course not. There are legal mechanisms to challenge such lifechanging decisions, such as a Request for Reconsideration.  Sometimes, the supervisor of the consular officer or the Department of State’s lawyers will overturn a mistake made by a consular officer.  In such cases, a waiver is not needed. Our Case Studies page illustrates many such situations. Even if the consular officer is not inclined to overturn the decision – for example, if the decision was fact-intensive and made 10 years ago and the consular officer doesn’t want to overturn such a decision – that consular officer may be more inclined to recommend a nonimmigrant waiver if the circumstances of the case are sympathetic.  And once you receive a nonimmigrant waiver, it should be approved in the future without a problem.

In I-601 immigrant waiver cases, in which USCIS makes the final decision, such challenges should be teamed with the request for a waiver. The first part of the case should discuss why the decision was wrong and why the decision should be overturned. The second part of the case should be framed as “in the alternative”: “If you find that the decision was correct…, then” this is why “the waiver should be granted” anyway.  By convincingly describing the applicant as the victim of an injustice in the first part of the case, it is possible that the applicant will elicit sympathy for the immigrant waiver request in the second part of the case.

Such a tactic also has a strategic benefit: if the immigrant waiver request is denied, the applicant can appeal to the Administrative Appeals Office. The AAO can re-open the decision to permanently bar an applicant. For example, it may find that a determination by the consular officer or a Customs and Border Protection official that the applicant had been convicted for a crime of moral turpitude was erroneous.   In such a case, the waiver would no longer be needed.

If you have been found permanently inadmissible and you do not agree with the decision, or if you do need a waiver, please contact us to discuss your options.

Posted in 212(a)(2)(A)(i)(I), 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Crime of Moral Turpitude, I-601, Immigrant Waiver, Misrepresentation, Nonimmigrant Waiver, Request For Reconsideration, Section 212(h) waiver, Section 212(i) waiver, Visa Denial, Visa Fraud, Visa Refusal, Waiver | Leave a comment

221(g), a Consular Wall, and Unavailable Documents

You have been denied under Section 221(g) of the Immigration and Nationality Act and despaired because the consular officer demanded a document that is unavailable or unobtainable. Although rare, this does happen – perhaps a birth certificate was lost and the archives in a city burned down in a fire, or the birth certificate lists the wrong information.  This is what happened to a recent client – whose son was stranded outside the United States for more than two years while he attempted to resolve consular demands to have a  local court amend the birth certificate of his son to reflect him as the father.

There is hope in such situations.  US immigration law anticipates such problems. If a visa applicant can show that there is “actual hardship” in trying to procure the document, not just “normal delay and inconvenience”, then the consular officer is empowered to waive the document requirement and allow for substitute evidence. Although this authority is to be “sparingly used”, the consular officer must act reasonably – he or she cannot suspend processing interminably for an applicant who in good faith attempts to meet the documentation requirements.

This is what happened to “Joe”: upon USCIS request, he and his son submitted DNA results to reflect that he was the biological father, as well as evidence of their father-son relationship dating back more than 20 years.  The DNA testing was conducted by an accredited laboratory, with the son visiting the US Embassy to submit a DNA sample. So when USCIS approved the petition, Joe thought that his son would not have a problem at the visa stage of the process. Boy, was he wrong.

Notwithstanding his personal attendance at the immigrant interview, the consular officer demanded that his birth certificate be amended to show that Joe was his biological father.  Joe was not too nonplussed by the demand – he thought that he would be able to get it done quickly. But two years and thousands of dollars later – after the hiring of lawyers, dealing with courts and bureaucracy and his ex-fiancee – he was still not able to obtain a revised birth certificate. At that point, he contacted our firm.

We were able to gather additional evidence of his relationship with his son and document his attempts to amend the birth certificate, and bring this to the attention of a consular supervisor. After another interview, the son was promptly approved and the visa was issued.

Every case is different, of course.  But if you too feel you have run up against a consular wall, or that a consular officer is being unreasonable in requiring a certain document, feel free to contact us.

Posted in 221(g), Consular Officers, Department of State, DNA Test, Unobtainable Document | Leave a comment

Challenging Visa Denials and Revocations after an Interpol Red Notice or a Kangaroo Court Conviction

Interpol conjures up images of a worldwide police tracking down “bad guys” on the run from home country authorities.  But Interpol is not a law enforcement agency: it does not issue warrants and does not have the authority to make arrests.  While the overwhelming majority of Interpol’s information-sharing capacity is dedicated to tracking down true “bad guys”, many home country governments abuse it. They manipulate Interpol into doing their dirty work, making bogus allegations to locate dissidents, political activists, and whistleblowers. As a result, Interpol issues Red Notices based on bare allegations made by a government – for example, fraud – not evidence, with a view to extraditing that person back to that country.

Yet consular, Customs and Border Protection, and Immigration and Customs Enforcement officials erroneously use the Red Notice as shorthand to deny visas, detain individuals at the border, and arrest them inside the United States. It is easier for these officials to take the Red Notice at face value and act at the behest of other governments than to actually analyze and investigate the veracity of the allegations. This could be extremely time-consuming – time that US government officials may not have. In the context of a visa application, it is easier to apply a malleable 214(b) decision than to take the time to explore the factual accuracy of a red flag.   In the context of a visa revocation, it is easier to revoke the validity of a visa and “figure things out” later after a new visa application is submitted.

This should not deter wronged victims from challenging Red Notices; just the opposite. Such Notices can be challenged directly with Interpol. While the process can be time consuming, sometimes they can be successful, leading to the withdrawal of a Red Notice. The withdrawal of the Red Notice can then be used to challenge a visa denial or revocation. Even if one were not to challenge the Red Notice with Interpol, a victim should present exculpatory evidence to US immigration authorities to rebut allegations contained in a Red Notice.   This happens quite often in asylum proceedings in the US, when a victim presents evidence of ill-motivated persecution in his or her home country.

Besides Red Notices, a person can encounter visa problems because he or she has a politically-motivated conviction for a crime of moral turpitude.  Perhaps the person was the victim of a “kangaroo court” process – in which the conviction was preordained and all notions of due process were disregarded.  Perhaps the person fell afoul of powerful authorities by blowing the whistle on widescale theft, and these authorities retaliated by prosecuting the whistleblower on bogus extortion, bribery, or fraud allegations.  While a conviction for a crime of moral turpitude serves as the basis for a permanent bar from the United States, there is an exception. Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act  (2A) anticipates such abuse of home country laws, allowing for a “purely political offense” exception, i.e., if a person can show that a conviction is “obviously based on fabricated charges or predicated upon repressive measures against racial, religious or political minorities,” then a person cannot be deemed to be inadmissible.  While relatively rare, consular and Department of State officials can and do look behind a conviction if there is evidence that it was politically motivated.  In such a case, they can overturn the 2A finding of inadmissibility.

Notwithstanding the issuance of a Red Notice or a politically-motivated judicial process, there are remedies.  Contact us to discuss your options.

Posted in 212(a)(2)(A)(i)(I), 214(b), Asylum, Consular Officers, Crime of Moral Turpitude, Department of State, Interpol Red Notice, Political Offense Exception, Visa Denial, Visa Refusal, Visa Revocation | Leave a comment

The Value of the Freedom of Information Act (FOIA)

One critical tool in challenging errant visa decisions of consular officers is through the Freedom of Information Act (FOIA).  While the FOIA process with the Department of State is extremely limited in visa cases, sometimes consular officers rely on inaccurate information contained in US Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement (ICE) and Drug Enforcement Administration (DEA) files or improperly make visa decisions based on materials contained in those files. In such cases, FOIA requests can be extremely helpful.

Lawyers can assist in three aspects of Freedom of Information Act requests: 1) properly formulating and lodging requests; 2) filing lawsuits when FOIA processing is delayed; and 3) assisting in appeals of government responses to FOIA requests.  The proper formulation of a request can mean the difference between a process that can take 3 months or 12 or more months. The alphabet soup of US government agencies can make the process confusing; many make the mistake of filing the request with the wrong US government agency or waste more than a year waiting for the results of a Department of State FOIA which will not be helpful.  Sometimes the time-consuming FOIA process can be avoided altogether with the proper filing of a simple request for information from the relevant agency.

FOIA requests are supposed to be timely acted upon.  The law requires that a FOIA response be forthcoming within 20 business days. In “unusual circumstances” a government agency may be given an extra 10 business days to process the request.  Yet, government agencies routinely violate these time frames. In such cases, a lawsuit may be filed – which will often prompt the processing of the FOIA request.

Finally, FOIA requests are supposed to be processed with a view towards a “presumption of disclosure”, i.e., government agencies are to release information and documentation that are not subject to an exemption.  Exemptions from disclosure include national security, law enforcement, trade secrets, privacy, internal deliberations, and certain communications between government agencies. Often, a government agency will improperly cite to such exemptions in redacting out or withholding information.  An appeal of a FOIA response or lawsuit can be useful in forcing the agency to disclose that information.

A FOIA request can be a critical tool in overcoming visa denials and visa revocations.  If you are interested in pursuing a FOIA request or are having problems with a FOIA request, please contact us.

Posted in CBP, Consular Officers, Department of State, Drug Enforcement Administration, Federal Bureau of Investigation, Freedom of Information Act, Freedom of Information Act Exemptions, Immigration and Customs Enforcement, Revocation, Visa Denial, Visa Refusal, Visa Revocation | Leave a comment