Just Because They Say So, Doesn’t Make It True

 I received a frantic call from a client recently at her naturalization interview.  She was being advised by the interviewing officer that her application was going to be denied because she did not meet the residency requirements.  In the run-up to the interview, the client and I had reviewed all of the relevant legal issues, including the physical presence and continuous residence requirements, and I assured her that she met the requirements for naturalization.  The officer was kind enough to speak with me over the phone, but remained unpersuaded from her position that the residency requirements were not met. The client left the USCIS office and went home extremely upset, notwithstanding my attempts to calm her down and assurances that we were in the right and would be able to challenge any adverse decision.

And then, two hours after the interview, something strange happened: I received an e-mail notification from USCIS that her naturalization application had been recommended for approval. Minutes later, I received another e-mail notification that she was placed in line for the oath ceremony. Less than a month later, she was sworn in as a US citizen.

While this case had a happy ending, too often, individuals just accept the decision of the immigration authorities, without actually understanding whether the decision was correct or not.  Sometimes, there is a cultural component: perhaps they come from a country in which it is useless to “argue” with the government, or they are afraid of some kind of retaliation if they dispute the decision. Or they think that the officers are extremely well-trained professionals and could not make a mistake on their application.  Or they are not even aware that they have a right to an appeal or request reconsideration (the Department of State, for example, conceals this right from denied immigrant visa applicants).

As can be seen from the Case Studies section of this website and from the example above, consular and USCIS officers make mistakes all of the time.  Counting days of unlawful presence; interpreting the term “crime of moral turpitude”; considering what is a material misrepresentation; understanding the availability of a waiver; applying the petty offense exception; jumping to conclusions of alien smuggling and sham marriages.  These mistakes can be attributed to many factors: immigration law is very complicated; they do not have enough time to thoroughly review applications; or they do not have enough training or experience to deal with the myriad of issues that arise. While there are supposed to be buffers in place such as management oversight to minimize these errors, these mistakes do happen – and will continue to take place.

The key is to take action.  This is not the time to be passive or inert or hope for the best. You need to assert your rights or at least verify the accuracy of the decision.  If you were victimized by one of these mistakes, or just want to understand whether the decision was a correct one, feel free to contact us to discuss.  The sooner you do so after the decision, the more likely your rights will be preserved.

Posted in 212(a)(2)(A)(i)(I), 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Crime of Moral Turpitude, Immigrant Waiver, Misrepresentation, Naturalization, Nonimmigrant Waiver, Petty Offense Exception, Pop-up Marriage, Request For Reconsideration, Sham Marriage, Visa Rights | Leave a comment

Zombies and Petition Revocations

What do zombies and petition revocations have in common?  Just when you thought they have died a permanent death – never to be seen again or heard from again – they come back to life, sometimes with devastating consequences.

This came to mind when a former client, Alex, contacted me about his Diversity Visa case.  He won the Green Card Lottery, but when he went to the Embassy for his interview, he was told that his application would be put on hold until questions about his 1998 L-1 petition were resolved.  I  had represented him back in 1998, after the Embassy sent his L-1 petition back to INS because of a “fraudulent office address” and his inability to describe his subordinates at his L-1 visa interview.  We were able to resolve the fraudulent office address accusation at that time – the Embassy’s investigator had gone to the wrong (!) address – but the petition’s 1 year validity expired and Alex decided not to pursue the development of a business in the US.  After that, over the course of 15 years, he regularly received B-1/B-2 visas at the Embassy and traveled back and forth once or twice a year for business purposes.

So when he arrived at the Embassy for his Diversity Visa interview, he was confident that he would receive the visa – with no problems.  To his shock and dismay, that was not the case.  He was interrogated about his L-1 visa application and why there was a “marker” in the visa database next to his name.  His current visa was cancelled and his application was temporarily denied under Section 221(g) of the Immigration and Nationality Act. He was especially worried because selection in the Diversity Visa Lottery expires on September 30, that is, he needed to receive the visa before September 30 or before the exhaustion of the quota, which could be before September 30.

Thankfully, I had retained Alex’s file from 1998 and was able to access his entire set of documentation.  I was then able to contact the Embassy on his behalf, clarify the outstanding issue, and obtain the removal of the “fraud” marker. Shortly thereafter, he was able to receive his immigrant visa.

This is not the first time that I have been contacted by a former client about a long ago and forgotten petition revocation – one even at the naturalization stage, after receipt of a green card and many, many years of living in the United States.  The US Government doesn’t forget – and one government agency, such as the Department of State, sometimes does not know what action another government agency, such as USCIS, took or did not take.  It is almost always best to aggressively challenge and attack a referral for petition revocation during its validity period, because – like a zombie – you never know when it will come back to haunt you – one month from now, one year, or 20 years later.

If a consular post has referred your petition back to USCIS for revocation, please contact us.

Posted in Department of State, Green Card Lottery, H-1B, L-1 Visa, Naturalization, O-1 Visa, Petition Revocation, Visa Revocation | Leave a comment

The Culture of No and 214(b) Student Visa Denials

The Department of State does not publish separate statistics for student visa denials, but judging by the number of phone calls we have been recently receiving from rejected students on Section 214(b) grounds, it appears that the Culture of No has adversely impacted potential students as well.  In particular, consular attention – and denials – has been riveted to certain categories of students, including:  1) those older than the age of 25; 2) those planning to attend community college in the US; 3) those from economically distressed or provincial areas of the home country; 4) “eternal” students; 5) those with planned majors at the US university deemed to be of less practical value; 6)  those with significant gaps in their work history; 7) those who previously dropped out of school; and 8) financial sponsors who are not immediate relatives.

Consuls have very little time to conduct a student visa interview, so they hone in on particular areas of concern.  For student visa applicants older than 25, consuls usually want to understand how the studies in the US will benefit the applicant’s already-established career in the home country.  For those planning to attend community college in the US, there is a perception that perhaps the applicant is not a very good student.  For those from economically distressed areas, the consul may view the student as an “economic refugee” looking for a ticket out of the home country. Eternal students are perceived as individuals with no career ambition or direction and more likely not to take studies seriously.

Those enrolling in a major in the US perceived to be of little practical use (e.g., political science) or freely available in the home country may encounter more resistance at a visa interview than computer-, science-, or business-related majors.  Similar to eternal students, student visa applicants who have taken significant work sabbaticals or have substantial gaps in their work history may have to deal with skeptical questions at the visa interview.  This is especially true for those who have previously dropped out of school; the consul may question the applicant’s motivations, maturity, and diligence.  Finally, having the financial ability to cover education is prerequisite to the granting of a student visa, so if there are questions about the sponsor and his/her intentions or financial capability, a rejection may follow.

In fielding phone calls and conducting consultations with rejected students from India, China, Russia, Ukraine, and other countries, one thing was clear: had they adequately prepared for their visa interview, many of them would have avoided the Section 214(b) denials.  For example, one potential student indicated in his DS-160 that he was “unemployed” because he did not have a third-party employer, when in fact he was self-employed and had built a small successful company.  Another could not explain at his interview how his future education in the US fit in with his career arc.  A third, while living in a poorer area of his country, actually was the son of a wealthy banker and lived quite comfortably.

Another thing is clear: it is much easier to obtain a student visa dealing with a “clean slate” than after a 214(b) visa denial.  It is always best to be prepared for that first interview so that you will not have to deal with a second or third interview, or as in one of our cases, 7 (!) interviews.  To prepare for your student visa interview, please contact us.

Posted in 214(b), Student Visa, Visa Denial, Visa Refusal | Leave a comment

Stunning Newly-Released Department of State Statistics Show Increases in Public Charge, Misrepresentation, Alien Smuggling, 214(b) Denials

The statistics stun – even the most callous observer.  In just two years, the number of individuals denied immigrant visas under the public charge section of the law (Section 212(a)(4) of the Immigration and Nationality Act) has increased more than 12 times!  Alien smuggling (Section 212(a)(6)(E)) findings doubled for immigrant visa applicants over the past year.  Misrepresentation (Section 212(a)(6)(C)(i)) decisions for these applicants increased by more than 25%.  214(b) denials for those applying for nonimmigrant visas – more than 2.7 million – also edged upwards.

The Department of State’s statistics table lists more than 50 visa ineligibility grounds. But one is hard pressed to remember such a radical increase in denials for a single ineligibility as with the public charge provision over the past two years. Incredibly, this massive increase is not a result of any changes in or amendments to the law itself. This would take congressional action. Rather, the dramatic jump in public charge refusals has come about because of the Department of State’s reinterpretation of existing law and the extreme change in political environment, an environment that can only be characterized as a “Culture of No”. Most disconcerting of all, it would appear that these denials continue to grow at an exponential rate in 2019.

There is one silver lining.  According to DOS statistics, approximately 60-65% of those subject to a public charge denial are able to overcome it.  This is usually done with the assistance of a joint sponsor.  However, consular officers are scrutinizing the joint sponsor closely: if he or she is a close relative of the family – not just a friend or acquaintance – then the affidavit of support is much more likely to be approved then if not.  In any event, the potential legal consequences are significant because the joint sponsor is contractually obligated to reimburse the US government in the event the immigrant becomes a public charge.

The bottom line: the Department of State is denying thousands more immigrant visa applicants on public charge, misrepresentation, and alien smuggling grounds than in years past. Given the high stakes – in some cases, permanent bars to immigration – the best advice remains: consult with an experienced immigration lawyer before the visa interview, not after. In the words of Ben Franklin, an ounce of prevention is worth a pound of cure.

Posted in 212(a)(4), 212(a)(6)(C), 212(a)(6)(E), 214(b), Alien Smuggling, Misrepresentation, Public Charge, Visa Refusal, Visa Refusal Rates | Leave a comment

Cheap is Expensive. How Paying for a Visa Consultation Can Save You from a Visa Denial.

Every day, we receive e-mails such as these:

“Hello, I was denied a Returning Resident Visa. Can you help?”

“Good day. I have traveled to the US 10 times over the past 5 years and never had a problem. When I tried to board the plane to the US last week, I was told that my visa was revoked. Can you assist?”

“Last summer I was barred from entering the US for five years. What are my options?”

Not to be macabre, but imagine that you were diagnosed with cancer, and on the Internet, you look up the names of some cancer doctors, and you sent them e-mails, asking whether they can help you? What would the doctor respond?

Similarly, when it comes to US visas, the only way to truly assess a case is by having a detailed discussion – about your personal circumstances, about what was indicated in the visa application, about what happened during the interview at the consulate or at the airport when you arrived in the US. Sometimes, it is necessary to review documents – protocols of Customs and Border Protection, visa codes, USCIS decisions, police and court records. This takes time.

People ask: “Why do you have a consultation fee?” The answer is simple: this ensures an objective review of your case. Lawyers who do not charge a consultation fee are interested in a final sale – giving you subjective advice to ensure that you will sign a contract with them.  They cannot live on free consultations. Instead of paying a consultation fee of $250, you may end up paying $3,000, $5,000, or $10,000 for assistance that may not be forthcoming.  Another problem with this approach is that it is usually the young, inexperienced lawyers who will not charge for the initial consultation: you become their “guinea pig”. They learn from their mistakes on their clients. Do you want to be a “guinea pig” with a visa denial or a permanent bar to visiting the US?

If you do travel to the US, you will most likely spend thousands of dollars – round trip tickets, hotels, Disneyland tickets.  So is it worthwhile to economize on visa advice?  A gentlemen recently contacted us after a visa refusal: he is a very successful businessman in his home country who wanted to take his family to Disneyworld. He and his family should have easily received visas. But they were denied – all because of bad advice he had received from a “visa consultant” in filling in his DS-160 form.  He was lucky – he was only denied under Section 214(b) of the Immigration and Nationality Act.  There was another recent case of a student who retained a different “visa consultant”: that consultant slipped into the student’s documents a false bank statement to try to increase the student’s chances for a visa. In that case, the consul permanently barred the student for fraud under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act.  Neither of the consultants charged an advance fee; their compensation was to be paid if/when the visa was issued.  That sounds tempting, but as they say, “cheap is expensive”.  In the first case, the visa consultant was incompetent. In the second – the visa consultant was unethical and engaged in illegal conduct: all to try to increase his client’s chance for the visa and ensure that he got paid.

Finally, people forget about opportunity cost. When you engage in one course of action, you forego the ability to engage in a different course of action. How much do you value your time?  How much do you value the ability to make plans?  If you committed a willful, material misrepresentation in a US visa application and the consul made a decision to permanently bar you as a result, wouldn’t you want to receive the objective advice of a lawyer?  If the objective advice of the lawyer is to accept the consular decision and knowing this, you then have the ability to plan to go to school in the UK, or to immigrate to Canada, isn’t that worth knowing?  Rather than deceiving oneself and falling for the sales pitch of a lawyer or a visa consultant taking advantage of your desperation, you can get on with your life otherwise.

Feel free to contact us for an honest assessment of your situation.

Posted in 212(a)(6)(C), 214(b), Misrepresentation, Visa Denial, Visa Refusal | Leave a comment

In the Dark as to Why the Consular Officer Permanently Barred You from the United States for a Material Misrepresentation, Alien Smuggling or a Crime of Moral Turpitude? There is Hope.

Sometimes, it doesn’t make sense.

When a potential client contacts us regarding a decision by a consular officer, we try to understand, first of all, why was the decision made?  What caused the consular officer to make the decision he or she did?  Often, we can understand the position of the consular officer; while we may not always agree with that position and in fact challenge the position, we at least can identify the problem.

But sometimes, we are confounded.  Take for example the situation of J. J contacted us after he had been turned around at the border by Customs and Border Protection. The CBP protocol memorializing J’s request to enter the US was clear: it said that J needed a different type of visa. He had previously been a student in the US, and he needed to obtain a visitor visa in order to return to the US as a visitor.  He then applied for a visa at the US Consulate, and was found to have made a material, willful misrepresentation.   Thus, he was permanently barred under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. After some time, he applied for a visa again – with the same result.

And so when J told us about his case, we were puzzled. After going through his visa history, his visa application form, and his history of entries to the United States, we could not understand where he had made a willful, material misrepresentation.  J is a serious, educated young man. He holds a professional position at a large company and lives comfortably in his home country. He has relatives in the US. This was not a person desperate to get to the US by hook or crook – only interested in visiting temporarily.

So we contacted the consulate that made the decision to try to learn what the problem was. We did not ask the consulate to overturn the decision because we did not know why the decision was made in the first place. We only wanted to understand what the problem was. At first, the consulate was uncooperative – telling J to reapply for a visa. But other than to fill the coffers of the US government, what sense would that make if the consulate recently found him inadmissible twice and did not provide any explanation to him? So we persisted.

Eventually, the persistence paid off. After receiving another inquiry from us, consular management decided to take a look at his case. And what it found was that there was no basis to make this draconian decision; there was no basis to find that J had made a willful, material misrepresentation. After reviewing and reopening the decision, the consulate did the right thing – it rescinded the original erroneous decision.

While this is a rarity, it does happen.  When there is a confluence of conscientious consular management who want to do the right thing and a mistaken decision, such a decision can be reviewed and overturned.  We have even seen such corrections after the lapse of many years.

If you are in the dark as to the basis for the decision to permanently bar you from the United States, please contact us so that we may discuss.

Posted in 212(a)(2)(A)(i)(I), 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Consular Officers, Crime of Moral Turpitude, Department of State, Misrepresentation, Visa Refusal | Leave a comment

Petition Revocations: Potential Conflicts with Employers and Why Denied Visa Applicants Should Consult with their Own Lawyer

Did you go to your employment visa interview and the consular officer told you that the approval of your petition is being revoked?  This is not an uncommon story, as more and more H-1B, L-1, O-1, and P-1 petitions are being recommended for revocation every year by consular officers. In general, consular officers must defer to the judgment of USCIS and the grounds for revocation are limited.  To recommend revocation of the approval of a petition, the consular officer must have discovered material new facts or misrepresentation or find that the visa applicant does not have the qualifications for the visa.  But often times consular officers substitute their own opinion and readjudicate the petition. We are seeing this more frequently, particularly in the context of O visa adjudications, in which the consular officer sets a much higher bar for qualification than USCIS.   The stakes are particularly high for those applicants who are being accused of fraud or a material misrepresentation: they may be subject to a permanent bar from the United States.

The problem for visa applicants is that it may take many months for USCIS to take any action on the consular officer’s recommendation to revoke the approval. Eventually, USCIS will either agree with the consular officer and send out a Notice of Intent to Revoke the approval, or reaffirm the approval. But that process may take 6 or more months. In the meanwhile, the visa applicant is stuck overseas – unable to return to the US.

One option that the US employer should consider is filing a new petition for the same visa applicant and address the concerns of the consular officer in that new petition. Usually, one can deduce the problems of the case and the concerns of the consular officer at the time of the visa interview.  So it is possible to provide additional or responsive evidence to address those concerns. By submitting the new petition, it is possible to expedite this review process.  If the new petition does not address those concerns or do so adequately, then USCIS will issue a Request for Evidence.  In any event, the review process will be expedited – and resolution will be forthcoming much quicker.

But what happens if there is a conflict: if your interests are not aligned with your employer in the United States.  Perhaps, the employer just wants to move on – and does not want to contest a potential petition revocation. Perhaps the employer found someone else for the job, or doesn’t want to spend the substantial time and expense in challenging a consular officer’s conclusion. The employee, on the other hand, has his/her own interests. If the petition is revoked and the consular officer’s recommendation takes effect, the employee may be permanently barred from the United States.  Perhaps the employer presented bogus documentation in support of the petition – and it is the employee who is being held responsible for it.  We are seeing this more and more – and it is the visa applicant who ends up with the short end of the stick: stuck overseas, with no job in the US, and no prospects for future immigration because they have been accused of fraud.

In short, whenever a consular officer recommends revocation of a petition, the employee/visa applicant should consult with his/her own legal counsel so that options may be reviewed.  Please feel free to contact us to discuss those options.

Posted in 212(a)(6)(C), Business Immigration, H-1B, L-1 Visa, Misrepresentation, O-1 Visa, P-1, Petition Revocation | Leave a comment

Visa Revocation – Not Just Related to Criminal Activity

Most people understand that if they are arrested, it is possible that their visas will be revoked.  DUIs, drug possession, domestic violence, shoplifting – these are just some of the situations in which individuals with valid visas have their visas revoked.  But what is less known – and understood – is that the Department of State has the ability to revoke visas for any reason in which eligibility is questioned.  In other words, the inquiry into whether an individual qualifies for a visa does not stop at the time of issuance; it is a process that can be – and often is – reactivated at any time after issuance.  In fact, we are seeing more revocations for non-criminal issues than criminal problems.

So what leads to this re-examination of an individual’s eligibility? The trigger points for such a “verification reactivation” are numerous.  For example, consular officers conduct validation studies, checking on a certain percentage of applicants who were issued visas to see if they complied with the terms of the visa.  If in the course of the investigation they uncover new information that calls into doubt information that was in a visa application (e.g., place of employment, intended length of stay in the US, purpose of visit to the US), they may revoke the visa.  If a relative of a visa holder applies for a visa, and in the course of the interview information comes to light about the visa holder (for example, located in the US in B status for the past 6 months), the consular officer may revoke the visa. If the visa holder applies for a new type of visa while still holding a valid visa, denial of the new visa can prompt revocation of the existing one.  We often see this when a holder of a visitor visa applies for an F-1 student visa. If a poison pen letter is sent to the Embassy describing certain visa shenanigans (e.g., a sham marriage), the consular officer out of an abundance of caution may revoke a visa – and if the information is confirmed, permanently bar the individual under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act.

Non-criminal revocation victims often ask: “Why is my visa being revoked? I did not violate any laws.” For example, the visa holder may stay in and travel around the US for a protracted period of time – say for 5 months – after CBP allowed for a stay of 6 months. Technically, the visa holder has not violated any laws.  But the consular rebuttal is simple: you said in your visa application you were only going for a month, so why are you now staying for 5 months? Or if it was not the first entry to the US after the visa application (and thus there is not a possible misrepresentation in the visa application), the consular officer may be questioning what you were doing in the US for so long. How did you support yourself? Were you illegally working?  Another legitimate question raised relates back to one of the requirements of the B visa in the first place: having ties to the home country (a foreign residence which the applicant does not intend to abandon).     If you are young and single and do not have any property in the home country, and you spend 5 months in the US on a visit, the consular officer may be questioning whether you abandoned your residence and thus takes steps to revoke the visa. Women who give birth in the US who relied on public assistance to pay the medical bills also find themselves subject to visa revocation.  In short, the reasons for visa revocation are numerous.

The good news is that notwithstanding the visa revocation, sometimes a new visa can be issued after a reapplication.  This entails applying for a new visa and going through another interview with the consular officer – and trying to convince the consular officer of your eligibility for a visa.  We have helped many individuals secure new visas after revocation.  If your visa has been revoked or are concerned that your visa will be revoked, please contact us.

Posted in 212(a)(6)(C), 214(b), Consular Officers, Department of State, F-1 Visa, Misrepresentation, Sham Marriage, Student Visa, Unlawful Presence, Visa Revocation | Leave a comment

Part 4: Hadi Deeb: Tsar-Consul of Uzbekistan – “Despite what you think, you really are not divorced.”

Mssrs. R, Y, K, K, and D each submitted entries for the DV-2018 Lottery during the registration period in the fall of 2016. They each had been divorced by an Uzbek court before the Lottery, so they indicated in their entries that they were divorced.  Each of them was selected as a winner. After attending their interviews and presenting the court decisions as evidence of their divorce, they were advised by consular staff that they were being refused immigrant visas because they had not picked up their divorce certificates from the local registration office prior to submission of their entries: as a result, in the eyes of the Embassy, they were not officially divorced when they completed their Lottery entries.

While the Uzbek law on divorce is ambiguous, it has been in effect since 2011.  What is beyond dispute is that the issuance of a court decision renders the couple without any marital rights and they must relinquish their marriage certificates during the court case. From 2011 until 2017, the Embassy, including Mr. Deeb, interpreted the law to allow for the presentation of a divorce court decision as satisfying the requirement.  The US Embassy in Tashkent issued immigrant visas to Diversity Visa winners who presented divorce court decisions without any problem.

Then, Mr. Deeb decided to singlehandedly change this practice – without any advance notification to Uzbek DV applicants.  It was the above-mentioned gentlemen who became victims of this reinterpretation – without having any advance notice, after incurring substantial DV-Lottery fees and expenses in traveling to Tashkent and undergoing medical exams.  Because they relinquished their marriage certificates during their divorce proceedings, they were unable to submit a marriage certificate at the time of their visa interview. In other words, they would have been unable to qualify as “married” or “divorced” in the eyes of the US Embassy in Tashkent.[1]

As Mr. Deeb well knows, the problem is that the Diversity Visa registration period is 12-23 months before the actual visa interview.  DV entrants for DV-2018 completed their entries from October 4 to November 7, 2016.  They did so without any advance notice of the Embassy’s reinterpretation of Uzbek divorce law.  Had they known, they would have been able to pick up their divorce certificates before submitting their DV-2018 entries. This, in the eyes of Mr. Deeb, would have qualified them to receive immigrant visas.  Similarly, the registration period for DV-2019 was from October 18 to November 22, 2017.  Individuals who submitted their entries at that time  were also unaware of the newly-imposed Embassy requirement, and already after October/November 2017, were unable to correct the situation.

Incredibly, more than one year after the imposition of this new interpretation, neither the Embassy’s website nor DV instructions for Uzbek applicants warn Uzbek applicants. In fact, the Embassy’s own document list suggests that either a divorce decision or divorce certificate suffices. By failing to notify selectees in advance, the Embassy is setting up Uzbek visa applicants for visa refusals.  In other words, the Embassy knows that there will be applicants applying for Diversity Visas and paying Diversity Visa fees who will not qualify because they were unaware of this newly-imposed requirement. In doing so, Mr. Deeb and the Department of State are able to reallocate these visas to other individuals, with the Department of State able to receive new processing fees.

Perhaps most insulting, consular officials have discretion to issue visas in these circumstances. 9 FAM 502.6-4b.(2)(c)(iv).  As previously discussed, the Department of State recognizes that there will arise legal nuances that do not fit neatly into the requirements of the DV rules. In such situations, the Department has in place a residual rule that allows for the exercise of positive discretion, i.e., even if a consul believes that an applicant did not comply with the letter of the DV rules, a consul may issue the visa anyway.  The Embassy does not suspect fraud or misrepresentation in any of these divorce cases. Yet, not only did Mr. Deeb not exercise this discretion; he has made the conscious decision to not inform future applicants of his reinterpretation.

Finally, one wonders whether Mr. Deeb will now seek to rescind the US permanent resident status of individuals from Uzbekistan who had only presented divorce decisions at the time of applying for Diversity Visas from 2011-2017. Potentially, such a pursuit could impact the status of hundreds of Uzbeks and their families in the United States.  While this sounds farfetched and beyond the realm of possibility, keep in mind that it is 2018 – where conventional wisdom no longer applies, nothing is off-limits, and there is no predicting how far Mr. Deeb will go.

Make no mistake: the cases cited in these articles represent only a few examples of the numerous victims.  Mr. Deeb’s reign of consular tyranny continues today. His denial du jour in DV-2019 relates to the “improper” spelling of the applicant’s patronymic in the DV entry – using the proper English spelling instead of the Uzbek spelling indicated in the applicant’s passport.  I repeat the question posed in the second article of this series: would such discriminatory and systemic maltreatment of visa applicants by a US consular officer be tolerated in Western Europe? Isn’t it time that instead of circling the wagons, the Department of State steps in and does the right thing – removes Mr. Deeb from his post?  Isn’t it time to stop this Tsar-Consul who continues to wreak havoc and destroy the lives of legitimate, unsuspecting Uzbek visa applicants?

[1] One interesting side note is that the DV rules allow an applicant to exclude from the DV entry an ex-spouse or a spouse if legally separated.  This makes sense: the ex-spouse or the legally separated spouse will not be immigrating.  In such a case, the DV rules do not require a photograph of the ex-spouse or legally separated spouse.  This too makes sense: why would an ex-spouse or a separated spouse provide a photograph for inclusion in a DV entry?  But according to the Embassy in Tashkent, that exemption does not carry over to these “quasi-divorce” cases, notwithstanding the fact that the ex-spouse will not be immigrating and will not provide a photograph.

Posted in 212(a)(5)(A), 212(a)(6)(C), Alien Smuggling, Consular Officers, DV-2018, DV-2019, Foreign Affairs Manual, Misrepresentation, US Embassy Tashkent, Visa Denial, Visa Refusal | Leave a comment

Part 3: Hadi Deeb: Tsar-Consul of Uzbekistan – “You are not proficient in your 3rd and 4th languages? Sorry, you are denied.”

The case of Mr. B is illustrative of the consular tyranny prevailing in Tashkent and how Mr. Deeb has apparently impacted Department of State decisionmakers in formulating visa policy.

Mr. B. has a high school diploma and thereby satisfies the Diversity Visa education requirements.[1] He is of Tajik background and grew up in Uzbekistan, where he learned the Uzbek language.  Yet, when he attended his interview at the US Embassy in Tashkent, the consul tested not his knowledge of the Uzbek or Tajik languages, but his English- and Russian-language capabilities in violation of the State Department’s Foreign Affairs Manual:

(b) A DV refusal must be based on evidence that the alien did not in fact obtain the required degree and not on your assessment of the alien’s knowledge level. You may not administer an exam, either oral or written, to test an applicant’s basic knowledge in order to determine whether they have the equivalent of a U.S. high school education. You may not refuse a DV applicant solely on the basis of your analysis of the applicant’s basic knowledge. Doubts about the applicant’s claimed educational level raised by your interview, however, may lead you to investigate the authenticity of the educational credentials claimed by the DV applicant.  9 FAM 502-6-3(c)(4).

While Mr. B. studied some English and Russian more than 10 years ago, he had forgotten most of it. When he could not comprehend the text of the Russian-language article he was given to translate, the consul denied him for not meeting the education requirements. It is important to note that there was no accusation of fraud – no allegation that Mr. B had “bought” a diploma or presented a fake educational document. If that had been the case, he would have been found inadmissible under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. But notwithstanding numerous follow-up requests to Mr. Deeb and the Visa Office, no explanation was ever provided as to how the education requirement was not met, in violation of 9 FAM 504.11-3(A)(1)(b)(2).

This story then took another turn – one for the worse.  Six months after the author raised this case with the State Department, the Visa Office rescinded this prohibition on consuls checking the knowledge of DV applicants. Prior to November 5, 2018, the remainder of the Education Evaluation rule as enunciated in the FAM read as follows:

(4) Education Evaluation:

(a) Each post needs to determine what course of study is equivalent to a high school education or its equivalent in the host country. Previously, posts were provided with a guidebook that provided information on high school equivalency country by country. That guidebook (“Foreign Education Credentials Required”) is no longer in print and is not available in updated format. You should not rely on it for your evaluation of high school credentials. You should make use of the resources found in your Public Diplomacy (PD) section to determine comparable courses of study in the host country that would meet the definition of a high school education or its equivalent. Contacts in the host country’s Ministry of Education may also be of help. If you have questions about certificates and diplomas, you should consult with your public diplomacy section, including Education USA advisors and locally engaged staff, as they are valuable resources in evaluating local education systems. PD personnel advise prospective students and evaluate their educational backgrounds and have experience with and knowledge of local schools. To determine the authenticity of any particular document, you will need to work with your Fraud Prevention staff to develop expertise in making that determination. Interviewing officers may wish to consult with other posts when in doubt about the authenticity of educational certificates from countries outside their consular district.

The new version of 9 FAM 502.6-3(C)(4) now reads:

(4)  (U) Education Evaluation:

(U) The burden of proving that an applicant’s education is equivalent to a high school degree is entirely on the applicant.  If the applicant does not satisfy you that the applicant’s education is equivalent to a high school degree but you believe additional evidence could meet the applicant’s burden, you should refuse the applicant under 221(g) and request the applicant to provide additional information.  If the applicant is unable to credibly prove the education equivalency requirement to your satisfaction, you should refuse the applicant 5A.

In short, the consular prohibition on testing the knowledge of applicants has been abolished.  Consuls are now given free rein to assess applicants’ basic knowledge and deny them if their “knowledge” is deemed inadequate. Consuls can now substitute their own assessment of an applicant’s knowledge in the place of the educational system of any DV-participating country. Think about that – the Department of State has decided that, in the course of a 5-10 minute interview, a consul can evaluate better than the educational establishment of a given country whether an applicant has the equivalent of a high school education.  And as can be seen in Mr. B’s case, this assessment can be in an applicant’s third and fourth languages!

In the next article the reader will learn how Mr. Deeb’s unilateral reinterpretation of Uzbek law and game of “hide the ball” has shattered the lives of unsuspecting visa applicants.

[1] 8 U.S.C. § 1153(c)(2).

Posted in 212(a)(5)(A), 212(a)(6)(C), Consular Officers, Department of State, DV-2018, DV-2019, Foreign Affairs Manual, Misrepresentation, Request For Reconsideration, US Embassy Tashkent, Visa Denial, Visa Refusal, Visa Rights | Leave a comment