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

Visa Myth #981 – “If I get a 2nd Passport, My US Visa Problems will be Solved.”

This myth has been going around for years – no doubt perpetuated by representatives of 2nd passport programs.  A national of Country X has US visa problems – because of a criminal incident 20 years ago making him inadmissible to the US.  He decides to obtain a passport from a European Union country by making a very substantial investment.  Because he has been told that nationals of his new country are eligible for the Visa Waiver Program (VWP) – a program that allows for travel as a tourist or business visitor to the US for up to 90 days without a visa, with no visa interview required – he is under the impression that he should qualify too.  Until he reads the fine print – or consults with a US immigration lawyer.

Before boarding a flight to the US without a visa, citizens of VWP countries pre-register with the US authorities. This pre-registration process is known as the Electronic System for Travel Authorization (ESTA).  As a part of the process, one must complete an online application form, which includes a question about criminal history.   And upon disclosure of such a history, he will be directed to apply for a visa at the nearest consulate. (N.B. Failure to disclose the criminal history could lead to a permanent bar for a material misrepresentation under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act.)  Similarly, those with previous 214(b) and other visa refusals will be required to apply for a visa.

When he applies for that visa, he will be treated not as a national of Country X or the EU country, but as a person with a criminal record who requires a nonimmigrant waiver. Whether he will be able to obtain that waiver of course will depend in great part on his personal circumstances, the nature and recency of the crime, whether he poses a danger to the US, and the purpose of his visit to the US. The fact that he has obtained a passport of an EU country may speak to his wealth and comfortable position, which may help him obtain the waiver.  The time period for the waiver validity may also be longer using the passport of the EU country than from Country X. But acquiring that passport does not “solve” his problem.

Also, being an EU national does not expedite the processing time for receiving the waiver.  The current processing time for nonimmigrant waivers is 4-6 months, regardless of country of origin (with limited exceptions).

There are certainly legitimate uses for a 2nd passport.  For example, some – such as St. Kitts – may allow for 10 year US visas.  For some travelers, that prospect alone may be worth it if their home country is limited to 1, 2 or 3 year US visas.  But to think that the appearance of a new passport will magically open the golden gates to the US without a visa for someone who is inadmissible or has previous 214(b) refusals – that is just another myth, one to be aware of before making that investment.

Posted in 212(a)(6)(C), 214(b), 2nd Passport, Crime of Moral Turpitude, Electronic System for Travel Authorization (ESTA), Misrepresentation, Nonimmigrant Waiver, Visa Waiver Program (VWP) | Tagged | Leave a comment

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