Rights of Visa Applicants

You have rights.  Yes, if you have been denied a visa, you have rights.

The Department of State’s Customer Statement lists only some of those rights, as follow:

We promise to you, the visa applicant, that:

  • We will treat you with dignity and respect, even if we are unable to grant you a visa.
  • We will treat you as an individual and your case as unique.
  • We will remember that, to you, a visa interview may be a new or intimidating experience and that you may be nervous.
  • We will use the limited time available for the interview to get as full a picture as possible of your travel plans and intentions.
  • We will use our available resources to fairly assist all applicants to get appointments to allow travel in time for business, study, and other important obligations.
  • We will post detailed and accurate information on visa requirements and application procedures on every Embassy and Consulate website.
  • We will provide information on nonimmigrant appointment waiting times at every Embassy and Consulate posted on https://travel.state.gov.
  • We will explain the reason for any visa denial to you.
  • We will explain the reason for any visa denial to you.

Those are your basic rights.  Beyond those basic rights, you also have specific legal rights.

Visa applicants are entitled to “every reasonable opportunity to establish eligibility to receive a visa.”  This applies to all visa applicants.

For those refused for making a material misrepresentation (Section 212(a)(6)(C)(i) of the Immigration and Nationality Act), the consul must be “receptive” to new documentation and information.  The consul must review any new documentation and information that you present to challenge this life-changing and draconian decision to permanently bar you from the United States.

Every denied immigrant visa applicant is entitled to request reconsideration of a refused application. This means that if you have additional documentation or information that calls into question the decision to deny your immigrant visa, you have the right to submit it and have the consul review this new evidence.  For parents of a US citizen applying to immigrate but found to be inadmissible for making a material misrepresentation, there is no waiver available. Given their expressed immigrant intent, they also will most likely not qualify for a nonimmigrant waiver. Therefore, the stakes cannot be any higher in challenging the accuracy of this decision.

While the actual reason behind the decision to deny a B visitor or F-1 student visa under Section 214(b) may be difficult to receive from a consular officer, you have the right to learn the rationale behind a denial of an immigrant visa. By learning the rationale behind the denial, you will better understand the reason and be in a better position to challenge that decision.

If you were denied a visitor or student visa, you do have the right to re-apply for a visa – without time limitation (the next day, one month later, six months later, etc…).

Finally, visa decisions must be made in “good faith” and be “bona fide”. This means that the consul cannot deny a visa just to punish you; there must be a valid factual and legal rationale to do so.

By not asserting your rights, you are in essence agreeing or reconciling yourself with the decision.  No one has had a negative visa decision overturned or overcome by doing nothing.  If you would like assistance in asserting your rights, please contact us.

Posted in 212(a)(6)(C), 214(b), F-1 Visa, Family Immigration, Misrepresentation, Nonimmigrant Waiver, Request For Reconsideration, Visa Denial, Visa Refusal, Visa Rights, Waiver | Leave a comment

Top 12 Reasons for Visa Revocation

Over the past couple of years, we have seen a dramatic surge in the number of visa revocations. Every day our office is contacted by individuals who have had the misfortune of having their visas revoked, so we thought this would be a good opportunity to catalog the most prolific reasons for visa revocations.

This blog is not about the Trump Travel Ban and the more than 100,000 visas revoked under it.  It also is not about the revocation of visas at US airports upon arrival, nor consular recommendations to revoke USCIS approvals of employment petitions.  Rather, it is about the tens of thousands of visa revocations initiated by the Department of State and consular officers around the world every year.  This article will list the 12 most “popular” reasons for visa revocations. These visa revocations are triggered by new material information which crops up after the original issuance, calling into question whether the visa holder remains eligible for a visa or admissible to the United States.

  1. Arrest.  An arrest for a variety of crimes can trigger visa revocation: a DUI, shoplifting, drug possession, domestic violence, selling alcohol to a minor. This is true even if the charges are dismissed, or the underlying crime in and of itself is not an adequate basis to find a person inadmissible. Often the revocation request is sent out by the corresponding law enforcement agency to the Department of State, and within 24 hours, DOS will take action to revoke the visa.
  2. Violations of visa status or conduct in the US inconsistent with representations in the visa process.  Spending several months in the US in B status may trigger a suspicion of unlawful employment and a visa revocation. Giving birth in the US may lead to a consular contention of being a public charge and visa revocation.  Providing misleading information during the visa process – such as indicating a proposed stay for two weeks and staying for several months – is another reason for a visa revocation.  A child who enrolls in elementary school in the US without a student visa may lead to the revocation of the child’s visa, along with his parent’s.
  3. Security.  No-fly, terrorist, and a variety of watch lists are constantly being updated. Not only do these lists encompass the individuals themselves, but known family members, friends, and associates and associates of the associates, as well. The revocation net is being cast farther and farther afield.
  4. A denied immigrant visa application.  A refusal of an immigrant visa may lead to the cancellation of a valid nonimmigrant visa. For example, a Diversity Lottery winner who is denied for not properly filling in the entry may have his B visa cancelled because the intent to immigrate is inconsistent with the terms of a B visa.
  5. A refused nonimmigrant visa application. For example, an individual applying for a student visa who is denied may have his valid visitor visa revoked because of the suspicion that he will use it to illicitly enroll in school in the US.  Or an individual applying for an employment visa who is refused may have his visitor visa revoked because of a consular belief that the individual will travel to the US and try to work anyway.
  6. A failed nonimmigrant visa application of a family member.  This is another reason why a visa may be revoked. For example, a visa holder wishes to travel to the US with her minor son, and applies for a visa for her son.  The consul then denies the visa for the son, and suspecting that the holder does not plan to return to the home country, cancels the valid visa.
  7. A family member in the US engaging in suspicious conduct.  A spouse in the home country may be answerable with a visa revocation because her husband is spending an inordinate amount of time in the US in visitor status.
  8. A poison pen letter. No matter how outlandish, the consul may give credence to a letter to the embassy from an ex-spouse, former business partner, ill-wisher, or jilted lover that accuses a visa holder of engaging in illicit activity or conduct inconsistent with the visa.
  9. Inaccurate information in a visa application. After the issuance of the visa, the consul verifies information in the application form.  If she is unable to verify that information – for example, the phone number or address listed for the employer is inaccurate – then the visa may be revoked. We see this happen when a third party, such as a travel agent or consultant, negligently (or deliberately inaccurately) fills in a visa application form on behalf of the client.
  10. Alien smuggling. While one may think of alien smuggling as the physical process of illicitly transporting individuals across the border, it actually covers numerous situations and individuals. Organizers of group trips to the US and employees of a travel agency sending tourists to the US may have their visas revoked if they are suspected of improperly facilitating travel for those who otherwise would not receive visas. For example, if the agency is engaged in arranging bogus employment confirmations, all employees of the agency may be impacted with the revocations of their visas.
  11. Conduct after receipt of the visa but before traveling to the US.  For example, applying for a visitor visa, receiving it, and then posting a resume on an American recruiting website seeking a job is grounds for revocation.  (Yes, consuls and their staff do such investigations.)
  12. Other circumstances. For example, a local employee of the US embassy who resigns from his position may have his visa revoked.

As you can see, the reasons for the revocation of a visa vary greatly. But just because a visa has been revoked, does not mean that it is impossible to obtain a new visa. Every situation is different. If your visa has been revoked, contact us to discuss your visa options.

Posted in Alien Smuggling, Misrepresentation, Petition Revocation, Revocation, Visa Denial, Visa Refusal, Visa Revocation | Leave a comment

Part 4: (In)Voluntary Statements of Visa Applicants at the US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

So to summarize the first three articles in this series, under threat of immigration and criminal consequences, consular staff in India have compelled visa applicants to write and sign Voluntary Statements.  This staff have refused to turn over copies of the Voluntary Statements to the applicants;[1] used false pretenses to entice applicants to sign the Statements; and dictated the text of the Statements, which may contain material misstatements leading to decisions to bar the applicants.

So if the Statements are “voluntary”, as consular staff insist, and the false statements therein subject the applicants to immigration and criminal consequences, what consequences should befall the initiators and overseers – consular staff and their managers – of the false statements?

U.S. law has a number of criminal statutes dealing with false statements. 18 U.S.C. § 1621 is the perjury statute, providing for imprisonment up to five years and a fine.[2]  The perjury can be made orally or in writing. There is also a false statement statute: with limited exception, “in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States,” for those who “knowingly and willfully -

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;”

they shall be fined and/or imprisoned for up to 5 years.  18 U.S.C. § 1001.

In addition, there is criminal liability not only for the person making the false statement, but to others intricately involved with the false statement. For example, there is a subornation of perjury statute: “Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.” 18 U.S.C. § 1622.  There is a statute which holds “principals” criminally liable: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 18 U.S.C. § 2.

Let’s return to the pre-printed text of the Voluntary Statement.  The Voluntary Statement makes it clear that the signatory can be fined or imprisoned for knowingly and willfully making a material false statement. 18 U.S.C. § 1001.  Consular staff in India use the “carrot” approach to get applicants to cooperate and write and sign statements, sometimes with materially inaccurate information: “Please co-operate and write as I say, otherwise it will make you permanently ineligible for the visa.”  They “threatened me that they will [b]an me from going back to USA if I don’t agree with their version of the story.”  In using this “carrot” approach, consular staff use the possibility of receiving a visa to entice the applicants to “knowingly and willfully mak[e] a material false statement,” subjecting the applicants to a violation of 18 U.S.C. § 1001.  In doing so, consular staff would appear to be “command[ing], induc[ing], or procur[ing]” the applicant to write a false statement – in violation of 18 U.S.C. § 2.

“But consular staff are honest and conscientious people,” you say: “they wouldn’t knowingly force someone to make a false statement.”  And you will get no argument from the author – that consular staff are overwhelmingly honest and conscientious people, so let’s assume that is true for a moment.  But what happens if a mistake was made at the time of the compilation of the Voluntary Statement, that at that time consular staff believed the information to be true, but later, they become aware of incontrovertible and irrefutable information that the statements were not true: they become aware that the misrepresentation or alien smuggling findings were based on materially inaccurate information, information that had served as the basis for the finding.

One would think that a conscientious consular officer would take action to rectify the situation: invite the applicant back and overturn the error. But that is not the case in Mumbai, where consular staff under Michael Evans on at least two occasions known to the author refused to do so. Rather, consular staff in Mumbai “circled the wagons” around their own – stonewalling and ignoring irrefutable evidence.  By refusing to correct the errors, they have turned the lives of at least 5 applicants upside down, including prohibiting three of them to immigrate (one of whom was unable to say goodbye to her mother in the United States before her passing).

The Department of State rules governing visa adjudications are clear: all visa applicants are to be given “every reasonable opportunity to establish eligibility to receive a visa.” 9 FAM 306.2-1. Per 22 CFR § 42.81(e), denied immigrant applicants have a right to request reconsideration of an immigrant visa refusal.  In India, apparently this means that the applicants have a right to request reconsideration, but consular staff do not have to actually reconsider erroneous decisions.  That would be “unreasonable”.

Consular staff in India have at the least engaged in unethical behavior by not taking corrective action.  By forcing applicants to sign false statements, statements which by their text implicate US criminal statutes, and not taking steps to correct these statements upon learning of their falsity, it would appear that this staff arguably have also engaged in unlawful conduct.  This raises a multitude of questions: why haven’t the past and current Consul Generals in Mumbai – Thomas Vajda and Ed Kagan – both of whom are aware of this consular misconduct, taken any steps to discipline or terminate the wrongdoers? Why haven’t they taken steps to ensure that these abominable decisions were overturned – decisions which have wrecked lives? Why haven’t they abolished a “voluntary” process that is not voluntary at all? Why do the US consular posts in India continue to subject Indian visa applicants to an abusive process that, apparently, visa applicants around the world are not subject to? Mr. Kagan? Mr. Vajda? Ambassador Juster? What do you say?

You can be sure that neither Mr. Kagan nor Mr. Vajda, who is now the Acting Deputy Assistant Secretary of State, Bureau of South and Central Asian Affairs, will do anything. Numerous attempts to reason before were met by deafening silence. They will not apologize to the affected applicants. They will not terminate this abusive process. They will not instruct staff to turn over sworn statements to applicants. They will not direct staff to stop the bullying and coercion.  Apparently, they believe that it is permissible to abuse and disrespect Indian visa applicants.

That is why I am calling on the Office of Inspector General at the Department of State to open an immediate investigation into consular misconduct in Mumbai. That is why I am calling on OIG to take prompt action to terminate this abusive “Voluntary Statement” process throughout India. That is why I am calling on OIG to refer for disciplinary action overzealous, coercive staff who continue to abuse the visa process and applicants.  It is time for this maltreatment to stop.

I will be sure to keep ILW readers and readers of this blog posted on any progress.

[1] On one occasion, the post in Mumbai required a “justification” before it would turn over statements.

[2] “Whoever— (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;

is guilty of perjury….”

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Department of State, Misrepresentation, Office of Inspector General Department of State, US Consulate Chennai, US Consulate Hyderabad, US Consulate Mumbai, US Embassy Delhi, Visa Fraud, Voluntary Statement | Leave a comment

Part 3: (In)Voluntary Statements of Visa Applicants at the US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

So why don’t consular officers wish to give copies of these Voluntary Statements to visa applicants? Maybe because they are not so “voluntary” after all.

As explained to me by several visa applicants from India, they do not voluntarily provide these statements. Rather, they are bullied, coerced, and compelled to write the statements. Worse, consular staff dictate the text of the statement under threat of permanent bar from the United States.  Even worse, the statements often contain materially erroneous information.

One applicant said that US consular staff “threatened me that they will [b]an me from going back to USA if I don’t agree with their version of the story.”  Another stated: “At the end when she asked me to write down the statement, she especially [sic] dictated the whole thing to me.” Not only had this applicant been advised to indicate wrong information in her statement, but the officer attempted to ingratiate herself by saying that she was “only trying to help her.” One can guess the outcome: both of these applicants were permanently barred from the United States by consular staff.

Other applicants were advised: “Please co-operate and write as I say, otherwise it will make you permanently ineligible for the visa.” Consular staff then dictated the text of the statements for the applicants to sign. They too were permanently barred from the United States.

Another applicant told me that “every point” in the statements of him and his wife “were pretty much dictated.” Consular staff made them “twist the facts”, thereby incriminating themselves in a case of smuggling and misrepresentation. They were found permanently inadmissible to the United States.

This is disturbing, to say the least.  Consular staff are engaging in coercion and bullying and forcing applicants to write so-called “Voluntary Statements” against their will. Even more disturbing is the lack of legal mechanisms to address such behavior – with the Office of Inspector General having limited jurisdiction and appetite to deal with consular misconduct in the field; the Visa Office shrugging its collective shoulders at such allegations;[1] and top consular management at the posts in India “in” on the abuse.[2]

Well, you say, the visa applicants were probably “guilty”, that they got what was coming to them, that consular officers are trained to know when an applicant is lying.

In some cases – perhaps most of them – that is certainly true. We see that sometimes in the United States in the criminal context – where suspects sign on to “confessions” admitting their guilt under the pressure, influence, and coercion of police officers.  But what about other cases – where the visa applicant did not engage in the behavior he was being accused of and under the threat of permanent inadmissibility, he writes a text dictated to him and signs a Voluntary Statement, hoping that he will receive the visa.[3]

More alarmingly, what if the consular officer knows or has reason to know that the information contained in the Voluntary Statement – one that subjects the applicant to a permanent bar from the United States and criminal liability for making a false statement in an official, sworn document – is substantively and demonstrably erroneous? What consequences should befall that consular officer – and consular management privy to that demonstrably erroneous information – for not taking corrective measures?  That topic will be explored in the next article of this series.

[1] LegalNet, the Visa Office’s liaison with the public on legal issues relating to the adjudication of visa applications, has announced that it will “provide substantive responses only to the following categories of inquiries:

(1)  (U) Legal questions about a specific case when the applicant or representative has attempted to contact post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant);(2)  (U) Legal questions about a specific case in which the applicant or representative has received a final response from post, but believes it to be wrong as a matter of law;(3)  (U) Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas; and(4)  (U) Legal questions about specific cases involving the Child Status Protection Act (CSPA) or the Violence Against Women Act (VAWA).” 9 FAM 103.4-2.

[2] For example, recent correspondence on such a matter by the author to Ed Kagan, Consul General in Mumbai, was ignored.

[3] Akin to a false confession in the criminal context.

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Department of State, Misrepresentation, Office of Inspector General Department of State, US Consulate Chennai, US Consulate Hyderabad, US Consulate Mumbai, US Embassy Delhi, Visa Fraud, Voluntary Statement | Leave a comment

Part 2: (In)Voluntary Statements of Visa Applicants at the US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

The first indicator of the questionable nature of these Voluntary Statements are the lengths to which consular officers go to obstruct their disclosure to the visa applicant. As a general rule and enshrined by Section 222(f) of the Immigration and Nationality Act, visa records are considered confidential and not subject to disclosure. However, there is an exception for documentation submitted by the applicant; such documents are subject to disclosure.

In the case of the Voluntary Statements in India, the consular officer does not give a copy to the applicant at the conclusion of the interview.  This, notwithstanding the draconian visa consequences and criminal liability that the applicant has been exposed to by signing the Voluntary Statement.

The consular officer’s “Bible”, the Foreign Affairs Manual (FAM), makes it abundantly clear that these statements are releasable to the applicant:

2. d. (U) Documents Releasable to Applicant: The documents listed below
are deemed releasable to an applicant as they constitute the applicant’s
original source documents. Consequently, returning the following documents
to the applicant does not violate the INA 222(f) requirement of
confidentiality. These documents include:

(1) (U) Correspondence previously sent to or given to the applicant by the
post;
(2) (U) Civil documents presented by the applicant (see paragraph (f)
below); and
(3) (U) Visa applications and any other documents, including sworn
statements
, submitted by the applicant to you in the form in which they
were submitted; i.e., with any remarks or notations by U.S. Government
employees deleted.​​

9 FAM 603.2-8 (d). Emphasis added.

The legacy FAM, i.e., the predecessor to the current version of the Foreign Affairs Manual, had an identical requirement.[1]

So why is it that an applicant’s requests for a copy of these statements are routinely ignored by consular staff in India?  Why is it that these applicants often must hire a lawyer to obtain a copy of a document that they are entitled to under the law? The author first brought this to the attention of the Visa Office more than five years ago, yet consular officers in India to this day continue to rebuff requests for these Statements – in fact, misleading applicants into believing that, “under US immigration law,” they are not entitled to copies of these Statements. Why? Hints will come in the next article in this series.

[1] 9 FAM 40.4 N5.3 (Documents Releasable to Applicant: “visa applications and any other documents, including sworn statements, submitted by the applicant to you…”).

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Department of State, Misrepresentation, Office of Inspector General Department of State, Uncategorized, US Consulate Chennai, US Consulate Hyderabad, US Consulate Mumbai, US Embassy Delhi, Visa Fraud, Voluntary Statement | Leave a comment

(In)Voluntary Statements of Visa Applicants at US Consular Posts in India – Are US Consular Officers Engaging in Unethical and Unlawful Conduct?

Consular officers at the US Consulates and Embassy in India periodically require visa applicants to write “Voluntary Statements.”  These Statements are used as admissions of guilt to deny and permanently bar visa applicants. But what is little known are the circumstances under which these “Voluntary Statements” are written – and the legal aspects of these Statements, some of which may in fact implicate consular officers themselves in potentially unethical and unlawful conduct.  In this four-part series of articles, visa applicant and consular behavior, as well as the circumstances under which these Voluntary Statements are used, will be examined.

As background, to the personal knowledge of the author, the Embassy in New Delhi, the Consulate General in Hyderabad, and the Consulate General in Mumbai (under Consular Section Chief Michael Evans) have all used these Voluntary Statements against visa applicants in India.  Peculiarly, it does not appear that consular officers at other posts outside India use these Voluntary Statements, and it is not altogether clear why only Indian visa applicants are being singled out.

For those unfamiliar with the Voluntary Statements, it is Form DS-5529[1] – with pre-printed text and space for the incorporation of the actual statement of the applicant. In Mumbai, the heading of the Form reads:

U.S. Department of State

Embassy of the United States of America Consular Section

Mumbai (Bombay), India

VOLUNTARY STATEMENT

The preamble of the Voluntary Statement reads as follows:

I, [visa applicant], hereby make the following statement voluntarily to [name of US consular officer] who has identified himself/herself to me as an employee of the United States Department of          State. I understand and agree that this statement may be used in an administrative or judicial proceeding, including a criminal proceeding, and that I may be identified in any such proceeding, and that I may be identified in any such proceeding as the person making the statement:

The standard form then provides space for the handwritten text of the Statement.  At the end of the Statement, the pre-printed text then states:

I have read the above statement and it is true, and complete to the best of my knowledge and belief. I have initialed each page and have been given an opportunity to make any connections or additions. I have initialed each line where a correction has been made.

This statement is made by my own free will and accord without any promises of reward and without threats, force or coercion used against me. I have been advised and I understand that this statement may be used for or against me in a court of law or any proceeding deemed necessary by the United States Government.

I have been advised and also understand that the laws of the United States provide severe penalties for making a false statement, and that a person who knowingly and willfully makes a material false, fictitious or fraudulent statement shall, upon conviction, be fined not more than $20,000 or imprisoned not more than 5 years or both (18 U.S.C. 1001).

The statement is then signed and dated by the visa applicant, with another line below for a witness signature. The pre-printed text then reads:

Consular Officer Statement

Subscribed to and sworn to before me this ___ day of ______, at __________

Witness (Consular Officer)  _____________________________     [SEAL]

The consular officer then indicates the date and signs his/her name

Below the signature is space for a Translator Statement and signature if an interpreter was used.

The Voluntary Statement is typically used at the posts in India when a consular officer has identified some fraudulent behavior that the applicant has engaged in. To ensure no misunderstandings and memorialize the bad behavior, the consular officer has the applicant first admit in writing to the misconduct and then hands down a consequent denial decision: for example, a Section 212(a)(6)(C)(i) finding of a willful, material misrepresentation or a Section 212(a)(6)(E) alien smuggling determination. The misrepresentation determination may arise in a myriad of situations, such as an applicant presenting false information about his job or marital status in making a visitor visa application, or providing misleading documentation regarding his ability to pay for his tuition or acceptance to a US university in a student visa application. For an alien smuggling finding, an immigrant visa parent applicant may misrepresent the age or marital status of his or her child, or an employment visa applicant may misrepresent his marital status to obtain an accompanying visa for a significant other who is not his spouse.

These are typical, garden-variety situations in which the consul may proffer the Voluntary Statement and have the offending party write a statement and sign. But what happens when the situation is…more complicated?

 

[1] There is no listing for this form among the forms on the Department of State’s website – https://eforms.state.gov/  Given the poor quality of the boilerplate forms used, it appears that consular officers in India have been making copies of copies of the form.

 

 

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Misrepresentation, Office of Inspector General Department of State, US Consulate Chennai, US Consulate Hyderabad, US Consulate Mumbai, US Embassy Delhi, Visa Fraud, Voluntary Statement | Leave a comment

New Department of State Rules Channel Trump: The 90 Day Rule and Hire American

US embassies and consulates abroad adjudicate more than 13 million visa applications a year, so when changes are made to the rules governing visa decisionmaking, the potential impact can be enormous. That is the case with two recent changes in the Foreign Affairs Manual, the State Department’s guidance to consular officers making visa decisions.  The revisions, unfortunately, are not for the better for visa applicants.

90 Day Rule

The most important change – with the most severe potential consequences – relates to the pronouncement of a new 90 day rule.  This rule supplants the previous 30/60 day guidance. The 90 day rule states that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” the consul may presume that the “applicant’s representation about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.” The FAM goes on to specify the four triggering events for the application of this presumption: 1) engaging in unauthorized employment; 2) enrolling in a course of academic study not permitted by the current status; 3) marrying a US citizen or legal permanent resident and taking up residence in the US while holding a B, F or other visa type which prohibits immigrant intent; and 4) engaging in any other impermissible activity without undertaking a corresponding change or adjustment of status.

It is obvious that this new rule is a byproduct of the anti-immigrant and pro-enforcement undercurrents sweeping Washington.  The Department of State is fighting back against perceived abusers of the visa system. But there is hope: the “rule” is only a presumption – it is not airtight and its application by a consul to an individual applicant must be cleared with the Visa Office. Further, because the presumption is not ironclad, it can certainly be challenged by applicants. For example, it is not clear whether: 1) it will also be applied by USCIS; 2) it may be applied in the absence of proof of an actual willful, material misrepresentation made to a US government official; 3) its potential application will be more likely to be forgiven in the context of an adjustment of status application of an immediate relative of a US citizen; and 4) courts will defer to this rule.

Of course, those in the United States will be – and should be – reluctant to leave the US to test the 90 day rule at a consulate. In fact, instead of encouraging many people to return to their home countries and maintain their ties – the prerequisite for the issuance of a B or F visa – the Department of State may end up achieving the opposite: compelling individuals to stay in the US until they become permanent residents or do not need a visa for re-entry (e.g., receive advance parole).  Whereas before many of these returnees to their home countries only risked a 214b refusal, now they may be subjected to a 6C misrepresentation decision – with a lifetime ban from the United States.

Hire American

A second change relates to the context in which a consular officer will review certain employment visa applications.  With the Trump Administration’s emphasis on hiring Americans and its issuance of a corresponding executive order in April, the State Department revised the Foreign Affairs Manual to reflect this emphasis.  Specifically, when reviewing H, L, O and P visa applications, consular officers are now instructed to consider the impact on US jobs:

On April 18, 2017, the President signed the Executive Order on Buy American Hire American (E.O. 13788, intended to create higher wages and employment rates for workers in the United States, and to protect their economic interests.” The goal of E.O. 13788 is to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse, and it is with this spirit in mind that [H, L, O, and P visa] cases must be adjudicated.

Already, some “patriotic” consuls have seen fit to treat such visa applicants with added rigor and skepticism. However, such autarkic zeal should remain subservient to the law and USCIS’ preeminent position in the H, L, O, and P petition-based landscape, i.e., USCIS petition approval is prima facie evidence of qualification and a consul may only recommend an approval for revocation in the case of fraud or the discovery of new, material evidence.

For E visa applicants, on the other hand, there is no such hierarchical order or buffer in place because there is no underlying approved petition to defer to; it is the Department of State with jurisdictional preeminence. Thus, E applicants are particularly vulnerable to the temperament of the consular officer in this politically turbulent environment.  In any event, the unintended impact of these “US worker first” provisions will almost certainly be adverse.  By denying employment visas to certain foreign individuals, Americans will lose resultant direct and indirect jobs that would have been created had the visas been issued.

Conclusion

As one can see, visa applications at US embassies and consulates outside the United States are becoming more and more fraught with potential problems.  One should tread lightly in this legal minefield – and consider obtaining legal assistance before making an application or considering a return to the home country.  Please feel free to contact us to discuss your situation.

 

Posted in 212(a)(6)(C), 214(b), Change of Status, Department of State, Foreign Affairs Manual, L-1 Visa, Misrepresentation, Student Visa, Visa Denial, Visa Fraud, Visa Refusal | Leave a comment

Expedited Removal – A One Way Ticket Back Home

As immigration enforcement ramps up, with more scrutiny and rigor exhibited by the government agencies involved (ICE, USCIS, DOS), one should not forget the role played by Customs and Border Patrol. Because they may have a visa, people tend to forget or underestimate the role played by the airport inspectors.  Those arriving at an airport are considered “applicants” for entry, and they are only admitted after the CBP inspector makes a decision on admissibility.

Just like the other agencies, CBP has also heard the call for more vigorous enforcement of our laws, and is now actively engaged in screening out “undesirables” and visa violators.   Now that the government is much more interconnected than it was even 3-5 years ago, this means that the CBP inspector has access to information contained in visa applications and petitions.

Another section of our website discusses in more detail the process of expedited removal, but in just the past couple of weeks alone we have been contacted by numerous individuals who have been expeditiously removed and are now subject to the 5 year ban.  One concerned a woman who was engaged in unauthorized unemployment in the US. CBP reviewed the text messages on her telephone and came to the conclusion that she was working without permission in the US.  Another related to a gentleman who had a facially valid H-1B visa, but planned to work for a different employer than the one listed in his visa.  CBP found a job offer letter in his suitcase from the new employer, and made an expedited removal decision and a finding of a willful, material misrepresentation.  While an expedited removal decision means a bar for five years, the willful, material misrepresentation finding is a permanent bar.  In one extreme case, CBP allowed an applicant for admission to withdraw his application and return home, but upon applying for a visa subsequently, the consular officer found that he had made a misrepresentation to CBP, notwithstanding the fact that CBP did not make such a finding!

As you can see, the consequences of an expedited removal and/or misrepresentation decision can be very serious. These legal consequences are in addition to the practical effect – being stuck in an airport for hours and hours, often in very uncomfortable conditions, and eventually sent back home on a long flight.

Sometimes preventive action – such as an explanatory letter to CBP from the inviting party in the US – can head off any misunderstandings. If a decision was made in error, one should consider a challenge to the decision. In extreme situations of abuse by CBP, a lawsuit for damages may even be appropriate. If the decision was correct and substantiated, then a waiver may be the proper course to take. Perhaps the basis for the decision is not clear because CBP did not give the applicant for admission a copy of the Record of Proceedings protocol from the airport, although it is supposed to.

In any of these situations, one should consider contacting qualified legal counsel. Feel free to contact us to discuss your legal options.

Posted in Uncategorized | Leave a comment

Consular Refusals and Lawyers Who Do Not Provide Legal Support for Visa Interviews

As is well-known, most employment and family cases involve a two-step process: 1) the submission of a petition to USCIS for approval; and 2) the completion of a visa interview at a US consulate or embassy outside the United States.  So why is it that many lawyers do not provide legal support for the visa interview?

This issue has become more acute as consular officers have become more aggressive in questioning the bona fides of the underlying petition.  While they are not supposed to readjudicate the approval – substitute their opinion for USCIS’ – they can find “new, material” information to justify the referral of the petition back to USCIS for revocation.  This aggressive questioning has become more pronounced since the issuance of the President’s Executive Order to protect US workers. In light of the executive order, the Department of State updated its guidance to consular officers in adjudicating nonimmigrant employment petitions. Specifically, DOS has instructed consuls to be mindful of protecting US workers and the possibility of fraud and abuse when adjudicating petitions.  Already, we have heard of  “patriotic” consuls referring petitions for revocations after telling visa applicants that their US employers should be hiring Americans.

Another trend is the revisiting of previous visa applications: were misrepresentations made about the purpose of the visit? Did the applicant say they were going to Disneyland, and then 2 weeks after arrival arrange for a job in the US? And now is applying for the employment visa?  The red light may not only flash for the consul, but should flash for the lawyer as well.  The potential consequences – a permanent bar from the United States – should dispel any inertia or passivity in approaching the visa process.

So why is it that many immigration lawyers explicitly stipulate in their agreements that they will not represent the applicant at the visa stage, or assume that the visa will be issued?  Visa applicants from all over the world approach us after refusal at the consulate, advising that their lawyer “disappeared” after the USCIS approval, did not help them prepare for their visa interview, or just told them to look at the website of the consulate and go for their “visa stamp”. These phone calls to our firm have become more frequent over the past few months as the interviews have become more akin to interrogations and investigations.

Bottom line: do not assume that just because USCIS approved your petition that you are entitled to or will receive the visa. If your lawyer has “abandoned” you or taken a DIY approach, then contact us.  The visa process should be taken seriously. Not to do so can have tragic, irreparable consequences.

 

Posted in 212(a)(6)(C), Misrepresentation, Petition Revocation, USCIS | Leave a comment

Myth #4 – Having a real relationship with a US citizen means you will get a fiancée or spousal immigrant visa

From India to Saudi Arabia to Armenia to the Philippines to Vietnam, the US Government is cracking down on bogus relationships – and real ones too. The events in San Bernardino a couple of years ago – when a woman who came to the US on a fiancée visa and her US citizen husband killed 14 people – triggered a government crackdown and more rigorous scrutiny of fiancée and spousal visas.  Unfortunately, we are seeing how many legitimate visa applicants are being victimized – and ending up in Visa Hell as a result.

Consular officers have a difficult job – trying to distinguish between a real relationship and a sham one. The visa applicant is asked a lot of questions at the interview about the US citizen petitioner, his family, employment, and meetings. Where does he live? Where do his parents live? How many people attended your wedding? When was the last time you saw each other?  Who attended the wedding? What is his job? How many times did you meet before the wedding? How many brothers and sisters does he have? What rituals did you do at the ceremony? Was he previously married? Where was the reception? Did he file a fiancée petition for a woman before you? Do you have any relatives in the US? The list goes on… One or two wrong or inconsistent or suspicious answers can lead to a visa denial and allegations of fraud, which carry a lifetime bar from the United States.

In reviewing spousal and fiancée petitions, USCIS has a list of indices of a sham marriage or bogus relationship. Consular officers consider similar factors, such as a) large disparity of age; b) inability of petitioner and beneficiary to speak each other’s language; c) vast difference in cultural and ethnic backgrounds; d) family and/or friends unaware of the marriage; e)  marriage arranged by a third party; f) discrepancies in answers to questions of which a husband and wife should have common knowledge;  g)  beneficiary is a friend of the family; and h) petitioner has filed previous petitions on behalf of prior foreign fiancées or spouses.  The factor du jour seems to be the size of the wedding: a small, simple wedding – regardless of the reason – equates to a visa denial, particularly in countries where largescale weddings are the norm.

Another problem encountered by some is the case of the “benevolent” consular officer.  Most consular officers are honest, intelligent professionals, but from time to time a US citizen petitioner may encounter an overzealous officer with good intentions.  The benevolent officer “knows” the beneficiary and her intentions better after a 5 minute interview than the US citizen does after an 18 month relationship.  He “knows” that she is up to no good, is really deceiving the US citizen just to get a green card.  He knows the language and local culture, so in his opinion, he is better positioned to judge the sincerity of the relationship than the US citizen.  He accuses the beneficiary of fraud – without regard to the US citizen. His opinion overrides the US citizen petitioner’s.

One lesson that should be drawn is that the relationship needs to be documented as well as possible from the beginning in order to minimize suspicions or questions about the legitimacy of the relationship.  The typical petition should contain dozens of photographs, e-mails, text messages, wedding reception receipts, plane tickets, passport stamps, flower receipts, postcards, and social media posts.  Tying it together should be a detailed explanation from the US citizen petitioner about the relationship. If any of the above suspicious factors are present (such as a small wedding or large age difference), it should be addressed in the explanation.  Of course, if the pair have any joint children, property, accounts, and insurance, that documentation should also be included.

Another lesson to be learned is that US citizens have rights – rights to proactively challenge the decision of the consular officer or USCIS.  A US citizen should not be idle or passive when dealing with the US immigration bureaucracy.  Only by asserting those rights can you hope to be reunified with your loved one in the United States. Contact us if you are encountering problems or delays with your case.

Posted in Fiancee Visa, K-1 visa, Revocation, Sham Marriage, Spousal Visa, US Embassy Delhi, US Embassy Manila, US Embassy Vietnam, US Embassy Yerevan, Visa Fraud | Leave a comment