Myth #2: A green card = Citizenship – US Passport – Voting Right

Another myth that we often encounter is the belief that having a green card is almost the equivalent of US citizenship.  People think that with the exception of having a US passport and the right to vote, being a permanent resident confers the same rights as a US citizen.  Unfortunately, that is not the case.

A green card can be taken away; with very limited exception, citizenship cannot.  A green card holder may be considered to have abandoned his US residence and have his green card taken away.  A green card holder can have his green card taken away if he commits a crime.  With the Trump Administration, this is becoming more and more of a real possibility. I was reminded of this the other day reading the story of Phillip Clay.

Mr. Clay was adopted from Korea in 1983 when he was 8 years old. Because US law at that time did not allow for the automatic conferral of citizenship for adopted children, he was a permanent resident.  Strange as it may sound, he and many others like him did not realize that they were not US citizens, that the adoption and citizenship processes were separate.  Mr. Clay became caught up in drugs and shoplifting. He was jailed and placed in mental health centers many times. He had a conviction for a violent crime – kicking a police officer.

In 2012, he was deported to Korea, a country he had not known since a small child and a language he did not speak.  After 5 years in Korea, he committed suicide.  More details about this tragedy can be found here – http://www.philly.com/philly/news/pennsylvania/philadelphia/adopted-from-korea-as-a-child-deported-as-an-adult-philly-man-takes-his-life-20170602.html

Of course, there may be reasons why green card holders decide not to acquire US citizenship.  But for those who delay the decision or don’t even know they are not citizens, the consequences can be tragic, particularly in the enforcement environment we now live in.

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Myth #1: A 214(b) Denial is Only for a Lack of “Ties”

I am often contacted by those refused visas under Section 214(b) of the Immigration and Nationality Act, and asked: “How can this be? I have great ties to my country. Married, kids, a good job.  How can they say I don’t have enough ties?” Unfortunately, many do not understand that “ties” are only a part of the 214(b) equation; another factor considered by consular officers is whether the purpose of the trip to the US corresponds to the type of visa applied for.

A gentleman recently contacted me about B-1 business visa refusals under 214(b). His problem was not that he lacked ties to his home country, but that he planned to work in the United States on the visa.  It sounded like he received bad advice from an incompetent attorney, and then “dug his own grave” by attempting to obtain the visa under varying pretexts.

His case was sympathetic in the sense that it sounded like his attorney was genuinely incompetent and perhaps unethical.  The individual set up a company in the US, rented an office, opened a corporate bank account, and placed a substantial amount of money on the account. He rented an apartment and bought a car. His B-1 visa expired, so he applied for a new visa – honestly, telling the consul he planned to work. The consul – correctly – denied the visa.

The company then applied for an L-1 visa for him, but received a 10-page Request for Evidence.  On the advice of his attorney, he applied for a B-1 visa again – with a changed story about the purpose of his visit. Fortunately for him, the consul only denied him under 214(b), when a 212(a)(6)(C) misrepresentation finding may have been appropriate.

Now the gentlemen wants to close the American company, the corporate bank account, and “finish his affairs” in the US, but he cannot receive a visa to do so. Unfortunately for him, the consul believes that he plans to work – and will not issue to him a visa to wrap up his US business.  Once you start down one visa path, it can be difficult to reverse course. (Or as they say, “once the toothpaste is out of the tube, you can’t put it back.”) He will need to have a friend in the US or a representative close the corporate account and send him the personal items he left behind in the US.  Maybe in a couple of years he will be able to obtain a visa to visit Disney World, but right now… he – and his “ties” – are stuck in his home country, wondering what could have been.

If you have been denied under 214(b) and would like to have your case evaluated objectively, please contact us.

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Visa Myths

Every day in my practice I encounter erroneous information and false facts. With a view towards dispelling this misinformation, I am introducing a series of blogs to discuss some of the most popular visa myths.  I hope the reader finds the information insightful, and welcome your feedback.

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How Does the Department of State Count Visa Denials? Or “When is a Visa Refusal Not a Refusal?”

In our previous blog, we highlighted the worldwide B visa refusal rates.  But those DOS published rates do not convey the entire picture. As any politician knows, when making any tally, the actual number is not important, but how one determines that number that is. The Department of State is no different.

The Department of State publishes adjusted refusal rates.  The actual refusal rates are not published.  In all likelihood the actual refusal rate is higher, and perhaps in some circumstances, substantially so.

So how does the DOS “adjust” its statistics?  It does so by only counting the last consular action on a particular applicant in a fiscal year. For example, if a businessman applied for a visa and was denied two times in 2015, and on his third attempt, he receives a visa in 2015, only the issuance will be counted; the two refusals will not be counted.  If he did not apply the third time, only his second refusal will be counted; the first refusal will not count in calculating the adjusted refusal statistics. And while the opposite is true – only a denial will count in a situation when an applicant is issued a visa in a fiscal year; later reapplies in the same year (e.g., the visa was only for three months); and then is denied a visa – these situations are significantly less frequent.

The difference may seem trivial, but it deliberately understates the actual visa refusal rate.  In addition, it does not reflect the millions of dollars received by the Department of State from visa re-applicants.  It disregards the initial refusals and perpetuates the “conveyor belt” system; after all, the applicant can always apply again, return for another interview, and he will only count once.   While it is understandable that the Department of State does not want “serial” re-applicants from impacting the refusal rate, at the very least, it should publish the number of such applications, or publish the actual refusal rate.  Transparency requires it.

Posted in 214(b), B Visa, Consular Officers, Department of State, Visa Refusal, Visa Refusal Rates | Leave a comment

Visa Trends – Higher Refusal Rates in 2015

The Department of State recently published its 2015 refusal statistics for B visas.  Several countries exceed the 60% mark: Syria, Gambia, Federated States of Micronesia, Mauritania, Liberia, Laos, Haiti, Somalia, Guinea-Bissau, Ghana, Cuba, and Afghanistan.  Among the most populous countries, the refusal rates greatly vary: China – 10.03%; India – 23.78%; Indonesia – 8.71%; Bangladesh – 59.96%; Pakistan – 40.4%; Nigeria – 32.56%; Russia – 10.24%; Philippines – 27.96%; Turkey – 13.88%; and Ukraine – 34.03%. These 2015 refusal rates represent an increase over 2014 for most of these populous countries: for example, the refusal rate for India jumped nearly 4%; in Turkey – more than 6%; in Ukraine – more than 6%; the Philippines – more than 3%; in Pakistan – more than 2%; in Russia – more than 2%; and China – 1%.

While on the surface these percentage increases may not seem significant, for these countries – with tens or hundreds of thousands of visa applicants – they translate in to thousands of additional refusals.   The increase can be chalked up to a number of factors, such as turmoil in a country (e.g., Ukraine); economic downturn (e.g., China); validation studies showing an increase in visa overstays from that country; or new consular personnel or policies at a particular post. Denial under Section 214(b) is far and away the most commonly-invoked legal basis for refusing these visas.

The refusal rate is important for a number of reasons. For example, if a country attains a 3% refusal rate it may be considered for participation in the Visa Waiver Program. The Visa Waiver Program allows for visa-free travel to the United States for business, tourism, and medical purposes for nationals of those countries accepted into the Program.  It is not only a matter of prestige, but a great boom to commercial and leisure travel.  Currently, there are 38 countries participating in the VWP. Based on the recently-released statistics, it does not appear that any of the countries listed above will be joining VWP anytime soon.

 

 

Posted in 214(b), Consular Officers, Department of State, US Embassy Delhi, US Embassy Kyiv, US Embassy Moscow, Visa Denial, Visa Refusal, Visa Refusal Rates | Leave a comment

Immigrant Waivers – New Hope for the Refused?

Previously, USCIS overseas offices had responsibility for reviewing I-601 immigrant waiver applications. This led to inconsistent adjudications among various overseas offices and extreme variations in processing times.  We first discussed the patent unfairness of this system on this blog back in November 2011.  To remedy these problems, in June 2012 USCIS centralized the processing of I-601 waivers at the Nebraska Service Center in the United States.  The impact can now be seen, and should give those who had been previously denied by a USCIS overseas office hope.

As noted in our 2011 blog, the approval rates at certain USCIS overseas offices were dismal at best.  For example, in Accra, Ghana, which had jurisdiction and reviewed waiver applications from numerous countries in Africa, its approval rate in 2010 was 22%.  The Rome USCIS Office had an approval rate of 25%.  Moscow and Athens hovered around 40%.  Contrast that with the approval rates at other USCIS overseas offices, such as Frankfurt, with an approval rate of over 70%, and one can see that success in a waiver adjudication was more dependent on where the applicant filed his waiver application than the underlying merits of the application.  Applicants in Frankfurt were more than 3 times likely to have their waiver applications approved than those in Accra.

Since centralizing I-601 adjudications, the approval rates have increased. While there is not a country breakdown provided by USCIS nor do its statistics provide an I-601 approval rate, the overall approval rate for waivers (not including provisional waivers) is approximately 90%.  In the first quarter of 2015, 19,233 waiver applications of various categories were approved, while 2,567 were denied. In the first quarter of 2016, 18,670 were approved, while 1,599 were refused.  While the statistics make an exact apple-to-apple comparison difficult, it is abundantly clear that with the centralization of the I-601 process, the chances of a successful waiver application have significantly increased.

For those who had an I-601 waiver application previously denied by an overseas USCIS office, do not despair. There are no restrictions on the filing of a new immigrant waiver application. This also applies to those who were rejected by the Nebraska Service Center and the Adminstrative Appeals Office. Contact us to discuss how we may be of assistance.

 

Posted in Extreme Hardship, I-601, Immigrant Waiver, Section 212(h) waiver, Section 212(i) waiver, USCIS, Waiver | Leave a comment

Call for Lottery Rejects on Photograph Grounds: Discrimination, Arbitrariness, Selective Enforcement

With the DV-2016 registration period in full swing, this is a good time to raise awareness about potential pitfalls encountered by DV applicants.  Perhaps the most seemingly innocuous requirement – submission of a photograph with the entry – is the one most easily overlooked.

The Diversity Lottery has several rules relating to the photograph submitted with the entry: 1) it must be on a neutral, light-colored background (dark or patterned backgrounds are not permitted); 2) it must be in focus; 3) no decorative items such as sunglasses or other items can detract from the face; 4) non-religious head coverings or hats are not permitted; and 5) the person must be looking directly at the camera.  But as is usually the case, the Kentucky Consular Center does not disqualify the entries at the time of intake during the registration period or after selection: it is only after the visa applicant is informed of his selection; after he gathers, prepares, and translates the supporting documentation;  undergoes a medical exam and prepares new photographs; attends a visa interview; and pays the application fee is he informed by the consular officer that the application has been denied because of a noncompliant photograph.  Usually, the consular officer knows in advance that he will be denying the application because of a single photograph, but nevertheless charges visa application fees for the entire family.

Over the years, a trend has emerged, with only a small number of consular officers around the world actually denying Diversity visa applicants on these grounds.  Why is that?   Is it because an applicant used a visa agent, the source of much consular animus? Is it discrimination (overt or latent) – with overzealous consular officers consciously or subconsciously seeking to turn away applicants of certain national origin or religious background?And why is it that certain consular officers selective enforce the rules: they deny some individuals, but issue visas to individuals with photographs less conforming then those who were denied? For example, an applicant barely visible with a fuzzy DV photograph receives a visa, but a person who is clear and unmistakable in the DV photograph is denied.  These are not imposters who are being denied – the initial rationale and impetus for the DV photograph rule; nor are they individuals who pose a security threat – another posited argument for the photograph rule.

And so perhaps the biggest questions: why is it that certain consular officers alienate visa applicants, their families and friends, all the while spending hours and hours of time attempting to enforce a petty, subjective rule that the overwhelming majority of their consular brethren do not enforce? Why is it that these consular officers are attempting to enforce a nebulous rule – what is “in focus”, what is a “neutral background” – against innocent visa applicants that has nothing to do with ensuring the qualifications of the applicant, securing our borders, or weeding out criminals or visa fraudsters?

If you have been denied a Diversity visa on photograph grounds by a consular officer in DV-2012, DV-2013, or DV-2014, please contact our office at us@bridgewest.com

Posted in Consular Officers, DV-2016, Green Card Lottery, US Embassy Tashkent | Comments Off

Lagosland: US Visa Odyssey of a Nigerian Student

Last year we wrote about a student visa applicant in Russia going through 7 interviews to receive a US visa. Not to fall behind their brethren in Russia, US consular officials in Nigeria are no slouches in running Nigerian students through the visa gamut, a veritable Lagosland of adventure, obstacles, and consular vengeance.  Consider the case of Yvonne.

Yvonne comes from a well-to-do family of professionals and is an honors science student at a US university.  During her junior year, she was caught shoplifting at a store, with the value of the merchandise less than $100. She was convicted under the state’s 1st time shoplifting statute.  When she returned to Nigeria and filled in a visa application, she failed to indicate that she had been cited for shoplifting. The initial consular officer at the consulate in Lagos orally approved the application.  Upon discovery of the shoplifting, the same officer called her back in for another interview.  After an extensive second interview in which Yvonne admitted to the conviction and disclosed all of the circumstances surrounding her case, the officer re-approved the visa.

When a consular supervisor got wind of the approval, he called Yvonne back in for another interview. Well, not really an interview: the consular officer had made up his mind in advance to punish Yvonne – despite the fact that US immigration law does not allow for consular officers to punish visa applicants – and deny her under Section 214(b) of the Immigration and Nationality Act.  After asking about the shoplifting incident, he handed her a standard 214(b) denial and told her she may re-apply for a visa if she wished.

Yvonne’s case then took a more bizarre turn. She applied for a visa again.  This time, a new officer went beyond the 214(b) decision and determined that Yvonne was permanently inadmissible for shoplifting – a crime of moral turpitude (Immigration and Nationality Act Section 212(a)(2)(A)(i)(I))!  Perplexed, Yvonne applied again a week later – and was interviewed by another officer, who agreed with the finding of permanent inadmissibility.  In contrast to the re-opened visa approval, a consular manager apparently did not bother to review these decisions to permanently bar Yvonne: if the supervisor had done so, he or she would have realized that Yvonne’s shoplifting conviction fell under the petty theft exception (Immigration and Nationality Act Section 212(a)(2)(A)(ii)(II)), i.e., Yvonne was not permanently inadmissible and did not require a waiver.

To summarize, Yvonne underwent five interviews conducted by four different officers – one deciding to issue her a visa, one punishing her and refusing the visa under Section 214(b), and two erroneously deciding to permanently bar her.

This was not the end. When Yvonne contacted our office after running through this rigamarole, we notified the post in Lagos of the errors. It replied that she may reapply for a visa, but upon a finding of eligibility, she would need to apply for a waiver. In other words, she is still permanently inadmissible, even if she qualified for the visa, and so would require a nonimmigrant visa waiver application.

We then contacted Washington, which thankfully put an end to the nonsense. Eventually, Yvonne received her visa, enabling her to return to her school. Certainly Yvonne shares in the blame for her visa problem because of the shoplifting incident and her failure to disclose it.  But what about the consular officers and managers at the US Consulate in Lagos who apparently spend more time overturning visa approvals and punishing visa applicants than reviewing erroneous decisions to permanently bar visa applicants?   Not what one would call a customer-friendly attitude towards visa visitors at Lagosland.   No wonder that when asked to provide the names of the responsible consular officers, the consulate declined to do so – calling it an “internal matter”.

Posted in 212(a)(2)(A)(i)(I), Crime of Moral Turpitude, F-1 Visa, Petty Offense Exception, Student Visa, US Consulate Lagos | Comments Off

Visa Competence, Consultations, and Consequences

The story was not unusual.  Ekaterina arrived in the US on a B-1 visa. She became acquainted with an incompetent lawyer, one who did not charge for an initial consultation.  The lawyer, more interested in making a sale because he could not live on free consultations, told her that she could qualify for L-1 status.  They then signed a legal services agreement and Ekaterina made a substantial payment.

The lawyer and Ekaterina began preparing to file the L-1 petition. The lawyer opened an American company; Ekaterina opened a corporate bank account and placed funds on the account; and on behalf of the company, Ekaterina leased an office, paying rent for three months in advance.  After this, the lawyer filed the L-1 petition for her to change her status. After USCIS sent a Request for Evidence, the lawyer prepared a response.  Unfortunately for Ekaterina, the response was inadequate, and USCIS denied the petition and her request to change status.

Ekaterina returned to her home country.  After a few months, she applied for a new B-1 visa so that she could return to the US to close the company and corporate bank account, and finish some personal business. The consular officer refused her application under Section 214(b) of the Immigration and Nationality Act – suspecting that she really planned to work in the US.

Besides illustrating the need to retain competent and honest immigration counsel, the story of Ekaterina again proves the immigration truism: immigration decisions have consequences.  Applying to work in the US and receiving a refusal can make it more difficult to obtain a tourist visa. Applying to immigrate can lead to a nonimmigrant visa denial during the pendency of the immigration process.   Deceiving a consular officer about the purpose of a trip can lead to a later finding of misrepresentation or fraud. Being denied a tourist visa one time can make it more difficult to receive one the next time.  USCIS refusal of a change of status or extension of status application can complicate future visa applications. Obtaining a green card but not spending time in the US can trigger a finding of abandonment of US status.

Before traveling down a particular visa path, one must weigh the potential risks and consequences.  This is another reason to consult with a competent immigration lawyer in advance – even if it means paying a consultation fee. As Ekaterina found out, cheap is expensive.

Posted in 214(b), Abandonment of Green Card, Change of Status, Extension of Status, L-1 Visa, Misrepresentation, Visa Denial, Visa Refusal | Comments Off

Visa Delays

US consular posts around the world are experiencing significant delays in printing nonimmigrant visas because of a software problem. The Department of State advises that visa applicants should expect delays of 10-14 days in the issuance of nonimmigrant visas. This is consistent with our experience; for example, a client was interviewed for a work visa on July 21 and issued his visa on July 31.

The Department of State continues to process immigrant visas, including Diversity Lottery visas and emergency visas, quickly – within 2-3 days. Also, individuals with valid visas are not impacted because they do not need a new visa. Similarly, individuals traveling under the Visa Waiver Program are not impacted by the delays because they do not need a visa. However, nonimmigrant visa applicants will continue to be affected because, according to the Department of State, it will take weeks to rectify the problem. Bottom line: Nonimmigrant visa applicants, particularly students, should apply for visas as far in advance as possible.

The Department of State has posted this FAQ to address any questions.

Posted in Department of State, Green Card Lottery, Student Visas | Comments Off