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

Part 2: Hadi Deeb: Tsar-Consul of Uzbekistan – A Stillborn Baby, An Infertile Woman, and “Why aren’t you Married?”

As background, some information about the Diversity Lottery is in order. The State Department administers the Diversity Lottery program, which allows for individuals from low-immigration countries with a high-school education or its equivalent or certain work experience to qualify to immigrate to the United States.[1] Every year, more than 10 million individuals from all over the world participate, with approximately 100,000 selected to pursue the 50,000 visas available. The popularity of the Diversity Lottery extends to the citizens of Uzbekistan, a poor, predominantly Muslim country in Central Asia.

The annual Lottery is held in three stages: 1) a registration period, in which individuals submit their entries (in the fall); 2) selection and notification of the winners (spring); and 3) visa interviews/adjustment of status process (starting on October 1), at which time nonrefundable processing fees are paid. For selectees processing overseas, they must receive immigrant visas by September 30, or before September 30 if the allotment of 50,000 visas is exhausted. This means that if the selectee does not receive a visa by that date, his “winning Lottery ticket” becomes null and void.  As a part of the rules, a participant must include information about his or her spouse and minor children in the initial entries, as well as recent photographs of each family member.  The rules are relatively straightforward. Yet this non-complexity has not stopped Mr. Deeb from devising an array of creative pretexts to deny immigrant visas.

Take the situation of Mr. S. He and his wife had one child.  His wife also gave birth to a stillborn baby. Naturally, Mr. S did not include that baby in his entry.  Yet, the Embassy denied the family – saying that they really had two living children. Despite presenting medical documentation confirming the stillborn birth, as well as documentation from neighbors and government officials that they only had one living child, the family was refused.

Or consider the case of Mrs. B. She did not include in her entry or provide a photograph of her 3 day old baby because the baby did not have a legal name at that time nor a photograph.  In fact, the baby was still in the hospital.  Mr. Deeb denied Mrs. B, notwithstanding 9 FAM 502.6-4b.(2)(c)(iv), which allows for the exercise of positive consular discretion and the issuance of a visa in a situation where an individual does not follow to a tee the letter of the DV rules. Recognizing that unique situations will arise that do not fit neatly into the requirements of the DV rules, the Department of State put into 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 Diversity Visa rules were put into place to combat fraud, imposters, and other malevolent action, none of which was present in Mrs. B’s case.  Yet that did not stop Mr. Deeb from denying the visa – and filling the coffers of the Department of State with Mrs. B’s nonrefundable processing fees.

While profiling is specifically prohibited by Department of State rules,[2] that has not stopped Mr. Deeb from targeting “atypical” Uzbek applicants. Ms. Y lived with a boyfriend and was pregnant with their child.  With no evidence, Mr. Deeb’s staff accused her of being married and not including her husband in her DV entry.  She was denied.  Ms. R, another single woman, was denied because she too was accused of being married.  Ms. M. only had one child and because of hormonal changes, was unable to have any more children. She was denied because of a suspicion – with no evidence – of having more than one child.  This theme of “not enough kids” is common. For example, Ms. K was denied because she “only” had two children. Each of these individuals presented countervailing evidence – either medical documentation, letters from government officials, and/or affidavits from friends/relatives/community leaders – to no avail.

Interestingly, these applicants were all denied under the standard rejection formulation of not complying with the rules of the Lottery program, i.e., none of them was accused of fraud or committing a material misrepresentation although each had, according to Mr. Deeb, intentionally lied and fabricated evidence to support their cases. And while theoretically these applicants would not be barred from playing the Lottery again because of the “standard” denial, the reason for this refusal would mean that even if selected again (odds of <1%), they would not receive the visas.  Should Ms. K include a nonexisting child in her next entry to address consular suspicion of having another child? Should Ms. R get married – when Mr. Deeb believes she already is married?

Some Uzbek Lottery winners didn’t even experience the indignity of being formally denied.  Rather, they reported to the Embassy on the appointed day – but did not make it to their interviews.  Mr. S appeared for his immigrant visa interview at the Embassy in Tashkent as required, but was turned away from the interview – and his chance to immigrate to the United States – because there was a mark on his $20 bill, unacceptable for the cashier. Similarly, Ms. R was turned away from her interview by a cashier because she had purportedly failed to submit her visa application form – when in fact she had.  Requests to Mr. Deeb to reschedule their interviews and correct these travesties were ignored.

This is just a small sampling of egregious cases. The magnitude of such consular tyranny in Tashkent leads one to consider: would such action take place at a US Embassy in Western Europe? If it did, would it be allowed to continue unfettered? Certainly not. The resulting scandal and public outcry would ensure that such action would be immediately shut down. Yet Mr. Deeb – with the continued backing of the Department of State – persists.  Tomorrow’s article will detail another creative denial – and how that denial has led the Department of State to further empower consuls like Mr. Deeb.



[1]   8 U.S.C. § 1153(c)(2). “Requirement of education or work experience. – An alien is not eligible for a visa under this subsection unless the alien – (A) has at least a high school education or its equivalent, or (B) has, within 5 years of the date of application for a visa under this subsection, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience.”

[2] See e.g., 9 FAM 403.10-3(A)(1) and State Department’s Customer Service Statement

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

Hadi Deeb: Tsar-Consul of Uzbekistan

They call him The Tsar.  And deservedly so.

Who else can unilaterally, singlehandedly reinterpret Uzbek divorce law to deny numerous  Uzbek Diversity Visa applicants?  Who else can crush immigrant dreams using a variety of creative pretexts: disqualifying an applicant for failing to include a 3 day old baby (with no legal name) in a DV entry; a single woman for failing to include her nonexistent husband in her DV entry; a family for not including a second child in their entry, a child who was stillborn? Who else can have his staff ask a single woman applicant why she is not married or an infertile woman why she does not have more children? Who else can test an applicant’s knowledge of his third and fourth languages – i.e., not his native language and the language he learned in school – in black letter violation of the Department of State’s own rules to deny a visa?  Who else can blatantly disregard the Department of State’s own rules by failing to provide the factual basis for immigrant visa denials?  Who else can deny a visa – just because…? In this four-part series of articles, consular excess – in the person of the Consular Chief at the US Embassy in Tashkent, Uzbekistan, Hadi Deeb – will be examined.

In the Age of Trump, it would seem that nothing can surprise – but everything can shock. The case of Mr. Deeb certainly shocks – even to this lawyer who has practiced immigration law for 25 years.  Remember, while immigration matters in the United States are at least subject to some checks and balances, with the judicial system providing some legal safety net, visa applicants overseas have no such legal buffer or security. With very limited exception, the doctrine of consular nonreviewability puts consular decisions and actions outside the purview of the courts. Apparently, Mr. Deeb counts on this to insulate his capricious and discriminatory decisions from public view.

To be clear, no one begrudges consular verifications of visa applicant credentials. Tashkent is a high-fraud post, and this practitioner applauds efforts to weed out fraud.  Yet the existence of such fraud does not give license to serial mistreatment of and discrimination against Uzbek visa applicants. Approximately 10 years ago, the Embassy in Tashkent was similarly headed by abusive consular officers – John Ballard, Rafael Perez, and Meredith Rubin. But the Visa Office in the Department of State stepped in at that time to curb consular abuses. In the Age of Trump, that is no longer the case.

Perhaps worst of all, it now appears that at least one manifestation of Mr. Deeb’s consular excesses has seeped into new rules recently released by the Department of State. That is to say, Mr. Deeb has influenced policymakers in the Department of State to further empower consular officers to act on whims, caprices, and in bad faith. The following articles will discuss in more detail some of the victims of this consular fiat in Uzbekistan.

Posted in 212(a)(6)(C), 221(g), Consular Officers, DV-2017, DV-2018, DV-2019, Green Card Lottery, Misrepresentation, Pop-up Marriage, Request For Reconsideration, US Embassy Tashkent, Visa Rights | Leave a comment

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