A Visa Applicant’s Bill of Rights – What the Department of State and Your Local US Embassy/Consulate Often Do Not Want You to Know

For visa applicants, the cards seem to be stacked against you.  Among the hurdles a visa applicant must face:

  1. The law places the burden on the visa applicant to prove eligibility for the visa and that he or she is not inadmissible to the United States.
  2. There are inadequate consular resources; at busy posts, consular officers can only allot a few minutes to a visa adjudication.
  3. There is no formal administrative appeals process of a visa denial (no Administrative Appeals Office, Board of Immigration Appeals, Board of Alien Labor Certification Appeals).
  4. With limited exception, there is no judicial review of visa decisions because of the  doctrine of consular reviewability.
  5. There is limited public accountability: no Department of State (DOS) Visa Ombudsman, no formal Complaint Procedure, and no formal recusal process.
  6. Section 428 of the Homeland Security Act grants the Department of Homeland Security (DHS) a vital role in the visa process and the public has very limited contact with DHS decisionmakers.
  7. Form visa refusal sheets are just that – boilerplate forms with no factual substantiation applicable to your application.
  8. Section 222(f) of the Immigration and Nationality Act shields from disclosure visa-related information and materials (usually making Freedom of Information Act requests futile).
  9. The role of the Visa Office at the Department of State is primarily limited to legal issues; factual issues are within the exclusive domain of consular officers.
  10. There is limited consular training in US immigration law, one of the most complicated areas of law.
  11. In nonimmigrant visa cases, particularly in high fraud countries, consular officers are trained to ignore supporting documents.
  12. There is no available recording of visa interviews, which can lead to a “he said, she said” situation.
  13. Consular officers sometimes profile individuals.
  14. Consular officers err on the side of caution.
  15. Advisory Opinions of the Visa Office to consular officers on legal topics are not published, so there is no transparency or centralized database as to how a particular issue will be handled.
  16. Consular officers are located outside the US – unaccountable to and immune from the scrutiny of US public opinion, media, and Congress.

But there is hope….

In fact, visa applicants have a whole range of rights, some of which the Department of State and consular posts outside the United States do not want you to know about.  For example, the American Immigration Lawyers Association (AILA) requested DOS on at least two occasions to revise its form visa refusal sheets to apprise denied immigrant visa applicants of the right to seek reconsideration of the denials (similar to an appeal). This right is embedded in the Department of State’s own regulations, yet DOS and consular posts do not deign to inform refused applicants of this basic right.  (The author welcomes examples, if such exist, of another US government agency deliberately failing to provide appeal right notifications to applicants against whom adverse action has been taken, particularly those who have paid processing fees.)

This is just the beginning.  A visa applicant has the right to:

  1. have “full consideration given to any evidence presented to overcome a presumption or finding of ineligibility.” The visa applicant is to be accorded “every reasonable opportunity to establish eligibility to receive a visa.”
  2. a “sound”, “non-arbitrary” and “as accurate as possible” visa decision by the consular officer.
  3. be informed of the legal and factual basis of an inadmissibility finding.
  4. not be discriminated against based on race, sex, nationality, place of birth, or place of residence. (For an example of consular nationality-based discrimination, see the author’s ILW article on the Tsar-Consul of Uzbekistan.)
  5. request the intercession of the Visa Office if a legal error was made in the disposition of an immigrant or nonimmigrant visa application. The consul must defer to the legal opinion of the Visa Office because “[r]ulings of the Department concerning an interpretation of law, as distinguished from an application of law to the facts, shall be binding upon consular officers.”
  6. Visa Office review of a consular refusal to recommend the granting of a nonimmigrant waiver application in certain situations (e.g., where urgent humanitarian, medical, national security or foreign relations issues are implicated).
  7. non-readjudication of a USCIS-approved petition.  This means that after USCIS has approved an employment petition (except for E visas), the consular officer may not substitute his opinion for the decision of USCIS.  A consular officer must defer to USCIS unless he finds fraud, a material misrepresentation, new information which might have affected the initial decision, or that the applicant is not admissible or eligible for the visa.
  8. have his/her petitioner respond to a consular recommendation for revocation when USCIS sends out a Notice of Intent to Revoke the petition approval.
  9. a decision on a visa application. A consular officer cannot withhold a decision or “sit on” an application interminably. A decision must be made within a “reasonable time.”
  10. receive certain visa-related documents upon request (documents submitted by applicants, such as visa application and sworn statement). US consular posts in India are particularly resistant in this regard, first coercing “Voluntary Statements” from applicants and then attempting to conceal the contents of those Statements from the applicants when they request copies.
  11. not to be profiled. The consular officer cannot refuse an applicant based on fitting a demographic profile, such as being “young” or “single.”
  12. to assistance of third parties, such as lawyers. The applicant’s US-based petitioner, relative, or friend may also contact a member of Congress for assistance in a visa case.
  13. consular compliance with the DOS Customer Service Statement (e.g., the applicant has the right to be treated with respect): https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/customer-service-statement.html
  14. to file a lawsuit in US Federal Court, for example, to challenge consular inaction on a visa application, a consular or DOS practice or policy, a consular failure to act on a request for reconsideration, or action by another government agency leading to a visa denial.
  15. not to be punished for perceived visa-related abuses by other persons (e.g., a change of status or visa overstay by a relative), i.e., “punishment” is not a legal basis for a denial.
  16. submit a new nonimmigrant visa application after a refusal, regardless of how little time has elapsed since the denial.
  17. be understood during the visa interview.  This is common sense, but sometimes simple misunderstandings and consular lack of proficiency in the local language can lead to a visa denial.

This list is not exhaustive: a visa applicant has more rights.  An article can be written on each of the above-mentioned rights, with some of the rights open to interpretation: What is a “reasonable opportunity to establish eligibility?” What does it mean to “profile” an applicant? What is a “reasonable time” to process a visa application?

But what should be clear from the above is that one cannot count on the Department of State or the local embassy or consulate to inform you of your visa rights.  The power of the rights accorded to the visa applicant comes only with their knowledge and timely exercise.  Don’t lose an opportunity to exercise your visa rights.

Contact Ken White if you have any questions.

Posted in Consular Officers, Department of State, Foreign Affairs Manual, Nonimmigrant Waiver, Notice of Intent to Revoke (NOIR), Petition Revocation, Request For Reconsideration, Rights of Visa Applicants, Section 222(f) Immigration and Nationality Act, Section 428 of Homeland Security Act, US Consulate Hyderabad, US Embassy Delhi, US Embassy Tashkent, Visa Revocation, writ of mandamus | Leave a comment

Trump Executive Order Bans Most Immigration for 60 Days

Regardless of country, President Trump has banned immigration of those outside the United States as of midnight on April 23, 2020.  This means that a) those seeking admission to the US as immigrants, b) are located outside the US and c) do not yet have an immigrant visa or a travel document valid beyond April 23, 2020 are banned entry to the United States for 60 days.  There are certain classes of individuals that this ban does not apply to, i.e., they are exempted: 1) those who are green card holders (lawful permanent residents); 2) those applying for adjustment of status within the United States; 3) EB-5 immigrant investors and their dependents; 4) certain medical professionals; 5) spouses and children under 21 of US citizens; and 6) other narrow categories (e.g., those entering for law enforcement or national security purposes; certain relatives of US Armed Forces members; certain Iraqi and Afghan employees of the US government).

Practically speaking, the ban will have limited effect because the Department of State has already suspended visa services and it is unclear when it will actually re-open embassies to process visas.  If the consular posts reopen within 60 days, it would appear that consular officers will not be issuing immigrant visas to potential immigrants such as Diversity Lottery winners, family immigrants, and immigrants with job offers in the US.  It is possible that Trump will extend the ban beyond the 60 day period.

The Trump Administration will also review nonimmigrant employment visas over the next month to determine if further restrictions are warranted on holders of and applicants for H-1B, L, O-1 and other work visas.

It is quite possible that this new ban will be challenged in court very soon.  Stay tuned.

Posted in Adjustment of Status, Department of State, Diversity Visa Lottery, DV-2020, EB-5, Family Immigration, H-1B, Immigrant Visa, L-1 Visa, O-1 Visa | Leave a comment

The Last Chance Provided by Humanitarian Parole

Today we are publishing an updated article on Humanitarian Parole on this site.  Many people are under the mis-impression that humanitarian parole only applies to medical emergencies. In fact, there are numerous situations that an application for humanitarian parole may be appropriate. For example, sometimes there are imperfections in US law which do not provide a legal solution for a situation which cries out for one.   Trying to fit a “square peg in a round hole” just will not work.  Well, sometimes, humanitarian parole can be the “round peg” that fits.

For example, minor children who remain stuck in the home country after parents successfully adjusted status in the United States under the Diversity Lottery program. The law requires that the child receive a Diversity Visa by September 30. If he does not, then his parent would have to file an I-130 family immigration petition for him, which could take more than 2-3 years because of the quota that applies to this category of immigration.  A temporary solution to the problem is obtaining humanitarian parole for the child so that he may enter the US and join his parents.  Once in the US, the process of re-parole allows the child to extend his status in the US until he gets his green card.

Every case is different. It is not easy to secure humanitarian parole.  In fact, these applications are among the most legally challenging cases.  Although humanitarian parole is not designated as a means to circumvent visa lines, it can be used in emergency, humanitarian, or extremely sympathetic cases where there is no alternative.  Feel free to contact us to discuss.

Posted in DV Lottery, Family Immigration, Green Card Lottery, Humanitarian Parole, I-130, Re-Parole | Leave a comment

212(a)(7)(A)(i)(I) – What To Do If You Are Turned Around at the Airport and Sent Home

Today we are publishing an article on the site about Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act. This is the decision of a Customs and Border Protection official at airports and other ports of entry not to allow an individual into the United States because he/she does not have the proper visa.  For visa holders, the CBP inspector revokes the visa with the inscription “22 CFR 41.122(e)(3)”.

While CBP does not provide a breakdown on the number of times it actually invokes this Section, it is clear that this number has escalated substantially under the Trump Administration.  In 2017, the number of inadmissibility findings by CBP totaled 216,470.  In 2019, that number increased to 288,523, a 33% jump.  This number only relates to those who tried to enter the US legally – as a Visa Waiver Program participant or visa holder.  When invoking 212(a)(7)(A)(i)(I), CBP sends these individuals back to their home country to apply for a visa, which may be difficult to obtain as a result. If the CBP inspector combines this determination with either an expedited removal and/or material misrepresentation decision, then the consequences are even more draconian – a bar from the United States.

If you believe that the CBP decision was wrong and would like to challenge it, or if you need assistance in applying for a new visa, please contact us.

Posted in 212(a)(6)(C), 212(a)(7)(A)(i)(I), 22 CFR 41.122(e)(3), CBP, Expedited Removal, Misrepresentation, Visa Waiver Program (VWP) | Leave a comment

16 Reasons a Consul Finds Your K-1 Case Suspicious

Today we are publishing a new article about K-1 visas.  In the article we discuss the 16 primary reasons a consul finds a K-1 case suspicious. The article also highlights the 4 steps the American citizen and fiancée can take to prevent denials. Finally, the article discusses in detail how to deal with a 221(g) refusal, an accusation of a sham relationship, and what to do if the petition is sent back to USCIS. The most important takeaway from the article: just because there is a real, sincere relationship does not mean that the K-1 visa will be issued. A lack of evidence, a weak interview, or a skeptical consul who believes he knows the fiancee’s “true intentions” better than the US petitioner can sabotage a K-1 case.  Contact us to discuss your case.

Posted in 212(a)(6)(C), 212(a)(6)(E), Fiancee Visa, K-1 visa, Misrepresentation, Sham Marriage, Visa Denial, Visa Fraud, Visa Refusal | Leave a comment

40 Reasons for F-1 Student Visa Denials

Today we are publishing a new article on this site about student visas.  In the article, we catalog 40 reasons why an F-1 visa can be denied. Straightforward 214(b) rejections, complicated 212(a)(6)(C)(i) permanent bans, and protracted 221(g) delays are some of the most common problems arising from an F-1 application. What would appear to be a straightforward, simple visa process can turn into a veritable minefield for the unsuspecting.  And while some of the denial reasons may be beyond the control of the applicant, what is obvious is that some students are unprepared for the visa application process – with many receiving avoidable refusals.  Contact us to discuss your situation.

Posted in 212(a)(6)(C), 214(b), 221(g), Change of Status, F-1 Visa, Student Visa, Visa Denial, Visa Refusal | Leave a comment

Visa Myth #975 – “But They Gave Me 6 Months to Stay in the US!”

At least a couple of times a month I get a similar, frantic phone call. “I just applied for a new visa, but it was denied. The consul didn’t like the fact that I spent 5 months in the US on my last trip.  I told him that the airport inspector allowed me to stay for 6 months. I didn’t do anything wrong!”  Or “My visa has been revoked. But I didn’t do anything wrong.  When I arrived in the US, they gave me 6 months to stay, so I did. I didn’t violate any laws, so why are they revoking my visa?!?” The revocation is done by either the consul or the airport inspector the next time the visa holder arrives in the US.

There are many “red flags” here considered by the consul or airport inspector:

  1. The visa holder must remember that when he applies for a visa again, the consul might compare your answer on your previous application to what you actually did: Did you indicate that you planned to stay for 2 weeks, but stayed for 5 months?  If so, you have lost credibility with the consul, at the least.
  2. The visa holder must remember that US consulates conduct validation studies. These are  surveys on individuals who received visas: how many returned home on time, how many did not, how many changed status, etc…  When they conduct these surveys and discover individuals who do not return home on time, sometimes they will revoke his/her visa. An e-mail is sent  notifying the visa holder that the visa has been revoked because of “new information” that came to light after the issuance of the visa (the actual revocation only takes effect upon departure from the US).
  3. Most importantly, the visa holder must remember that it is necessary to maintain strong ties (employment, family, property, etc…) with the home country throughout the validity of the visa.  By spending 6 months in the US, the consul reaches the conclusion that your ties to home are not so strong anymore, that you have established ties to the US, and that it is necessary to re-establish ties to your home country.  So he denies a new visa for 2-3 years so that you can “re-establish” ties.
  4. One other conclusion that the consul or airport inspector may draw is that you are working illegally in the US. Their view is “How can you be supporting yourself for 6 months without steady income?”  The airport inspector may check your phone or suitcase for evidence of illegal employment. Needless to say, it can be a humiliating experience.

The consul will usually deny the new visa application under Section 214(b).  The airport inspector will usually revoke the visa under Section 212(a)(7)(A)(i)(I) for “improper documents”.  (The inspector may also write by hand on the revoked visa “22 CFR 41.122(e)”.) Whether the airport inspector will allow the visitor to withdraw his application for admission to the United States, decide to initiate expedited removal, and/or make a Section 212(a)(6)(C)(i) misrepresentation finding depends on the seriousness of the circumstances.

Finally, remember that in the US the average worker only receives 2-3 weeks of vacation time a year.  So the mindset of a consul or airport inspector is: who can afford to take a 6 month vacation in another country?  What the heck were you doing all of that time? What employer in the home country would allow an employee to be “absent” for 6 months?    Of course, this may not apply to a retired person or if an emergent situation arises.

If you would like to discuss your situation, please contact us.

Posted in 212(a)(6)(C), 212(a)(7)(A)(i)(I), 214(b), B Visa, Consular Officers, Visa Denial, Visa Refusal, Visa Revocation | Leave a comment

FAQ on New Public Charge Rules – Part 2: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

On February 22, we published Part 1 of this FAQ. Since then, the Department of State, including all embassies and consular posts outside the United States, implemented the new rules.

What practical changes have gone into effect?

It is still too early to know exactly what each embassy and consulate will require from immigrant visa applicants.  However, in the few weeks since the rules went into effect, it appears that embassies and consulates processing immigrant visas are requiring 1) the completion and submission of the Form DS-5540 and 2) asset and income documents confirming the information in the Form.   The new Form DS-5540 asks about the immigrant visa applicant’s 1) age: 2) health; 3) household size; 4) assets; 5) current and future income; 6) liabilities; 7) past usage of public benefits in the US, if any; 8) education; and 9) trade/vocational skills. Documents confirming assets, such as real estate appraisals and bank statements covering up to 12 months, are being required in some cases.

What specifically will be considered?

There is no scientific formula used by consular officers to determine whether someone will become a public charge. Rather, they use what is called a “totality of circumstances” test, weighing positive and negative factors to make a final determination. Obviously, this is all very subjective. Applicants with similar qualifications may end up with different results: one consul may find one applicant to be a public charge, another consul may issue the visa. The factors considered are as follows:

  1. Age – if the applicant for an immigrant visa is under the age of 18 or over the age of 61, this will be considered a negative factor because of their inability to work or difficulties in finding a job.
  2. Health – if the applicant is likely to require extensive medical care or care that will interfere with the applicant’s ability to work or study after admission to the United States, this will also be considered a negative factor. On the other hand, if one is able to secure health insurance or has the financial ability to cover medical expenses, then this will be considered as a positive.
  3. Family Size – if the applicant has a large family applying for immigrant visas, this will be considered a negative factor. A small family will be considered a positive factor.
  4. Assets/Income/Liabilities – the question is tied to the official poverty levels in the United States. For a family of 4, the minimum income level in the US is $32,750 or assets valued at least $163,750.  If the applicant’s income is minimal and there is no job offer in the US, this will be considered a negative factor. If the applicant has current income or a job offer in the US at 2 ½ times the minimum income level, or substantial, liquid, transferable assets, this will be considered a positive factor.  Immigrants moving to the United States based on an employment-based category, approved petition, and a job offer will also have an easier time meeting their burden.  EB-5 investors should also not have a problem here.
  5. Education and Skills – there are various considerations here, including education level, employment history, knowledge of English, and vocational skills.  If the applicant is considered to be a person who may have a hard time finding work in the US, this will be a negative factor. In contrast, a person with a university education, strong employment history, and knowledge of English will be viewed positively.

What about Nonimmigrants?

Individuals applying for nonimmigrant visas to visit or study in the US must also satisfy the consular officer that he or she will not become a public charge.  A consul could also ask for the completion of Form DS-5540 and supporting documentation.  However, in cases in which the consul may suspect that the nonimmigrant visa applicant will become a public charge, the consul will most likely deny these individuals under Section 214(b).  If the applicant is seeking medical treatment in the US, then asset and sponsor information will be considered.

Are there any waivers available?

Unlike those with a criminal history or those that have serious immigration violations (misrepresentations, alien smuggling, unlawful presence), there are no waivers available for immigrant visa applicants who have been denied as a likely public charge.  In theory, there is a nonimmigrant waiver available for nonimmigrant visa applicants, but because these applicants will be denied under 214(b), the consul will not reach the question of a nonimmigrant waiver.

The rules are complex and very subjective.  So what is the bottom line?

The bottom line is that before starting the immigration process, one should make an assessment of whether this could become a problem. Once the immigrant petition is filed, an intent to immigrate has been expressed and it may be difficult to receive any new visitor visas as a result.  It is always better to consult with a lawyer before a problem arises: to objectively evaluate, plan and strategize going forward. At the end of the process, will the applicant receive the visa or be considered a public charge? Who is the consul at the Embassy who will be making the final decision? How strict or liberal is the consul in interpreting the very subjective public charge rules?  If one decides to proceed, what steps can be taken during the immigration process to make the immigrant visa applicant more adaptable, more employable, more skilled for his/her future life in the US? Attending English courses or computer classes? Working for a Western company? Arranging a job offer in the US? Sending out resumes to potential employers? What other obstacles may there be?  What if the immigrant visa applicant is already retired?

Please feel free to contact us to discuss your situation.

Posted in 212(a)(4), B Visa, Consular Officers, Family Immigration, Public Charge, Visa Refusal | Leave a comment

Diversity Lottery Refusals

We have just posted an in-depth article on this site about the various types of Diversity Lottery refusals – and how to prevent or challenge them.  At least 30,000 individuals go through Diversity Visa interviews every year – and don’t receive the visas.  Putting aside the approximately $10,000,000 in processing fees pocketed by the Department of State from unsuccessful applicants every year and millions more spent by these applicants in medical exams, travel, etc…, the article spotlights the veritable minefield of potential reasons for refusal.  One would think that the Lottery aspect of the Diversity Visa Program only applies to the selection – competing to be one of the less than 1% selected. But what many winners find is that even after selection the “Lottery” elements of luck and chance continue right up until September 30: until the visa is issued or denied or the application is not acted upon before the deadline. An applicant’s $20 bill was not accepted by a cashier because it had a mark on it, and he lost his chance for his interview as a result.   Nearly two years after the entry and photo were submitted, a consul thought an applicant’s photo was not “recent” at the time it was submitted, and he was denied. A consul believed that an applicant was married, but she was not, and she was refused.  Two applicants processed at the same Embassy with the exact same spelling alleged “defect” in their entries ended up with two different results: one received his visa, the other did not.  The list goes on and on and on… as does the Lottery.

Posted in Consular Officers, Department of State, Diversity Visa Lottery, DV Lottery, Green Card Lottery, Visa Refusal | Leave a comment

Department of State Announcement on the Suspension of Routine Visa Services

Suspension of Routine Visa Services

Last Updated: March 20, 2020

 

  • In response to significant worldwide challenges related to the COVID-19 pandemic, the Department of State is temporarily suspending routine visa services at all U.S. Embassies and Consulates. Embassies and consulates will cancel all routine immigrant and nonimmigrant visa appointments as of March 20, 2020. As resources allow, embassies and consulates will continue to provide emergency and mission critical visa services. Our overseas missions will resume routine visa services as soon as possible but are unable to provide a specific date at this time.
  • Services to U.S. citizens continue to be available. More information is available on each Embassy’s website.
  • This does not affect the Visa Waiver Program. See https://esta.cbp.dhs.gov/faq?focusedTopic=Schengen%20Travel%20Proclamation for more information.
  • Although all routine immigrant and nonimmigrant visa appointments are cancelled, the Machine Readable Visa (MRV) fee is valid and may be used for a visa appointment in the country where it was purchased within one year of the date of payment.
  • Applicants with an urgent matter and need to travel immediately should follow the guidance provided at the Embassy’s website to request an emergency appointment.
Posted in Consular Officers, Coronavirus, Department of State | Leave a comment