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

DV-2015 Lottery Fever

Congratulations to the winners of the DV-2015 Green Card Lottery. Against great odds, you were selected. Now comes the hard part.

As you know, selection does not guarantee a visa. 125,514 individuals were selected for DV-2015 (out of 9,388,986 entrants), but only 50,000, including their family members, receive visas. Winners must receive their visas by September 30, 2015 or before the 50,000 quota or 3,500 country quota is exhausted. In general, the lower the case number, the earlier the interview and the better chances of receiving the visa before the elapse of the program. Interviews will commence October 1, 2014. The big difference in DV processing this year is that the selectees and their family members will submit their immigrant visa application online and no paper will be filed with the Kentucky Consular Center (KCC).

Each Lottery visa applicant must meet the general requirements for admissibility to the United States. Admissibility bases for refusal include medical, criminal, security, and previous unlawful presence in the US. But in addition to these admissibility bases and the general Lottery eligibility requirements of education or experience and nationality chargeability, there are numerous reasons for a consular officer to deny diversity visa applicants – some of them, quite reasonable; others – not so. Whether understandable or not, the risks can be quite high – from paying thousands of dollars in visa fees and travel expenses without receiving the visas, to having tourist or student visas cancelled, to being unable to receive these visas in the future, or to being subject to a permanent bar to entry to the United States.

Each DV applicant must attend his/her interview at the appointed time. While this sounds simple, those who miss their interview run the risk of not having the interview rescheduled because of significant demand for the visas. Even showing up at the Embassy for the interview without one’s passport may be cause to turn a person away from the Embassy and therefore his opportunity for the visa. It’s happened – for example, to immigrate, a person may have applied with his home government for a new passport or for an exit stamp and does not receive the passport back by the date of the interview. Embassy guards, with the imprimatur of consular management, may, and have, turned away such applicants in the past, thereby depriving Lottery “winners” of the opportunity to receive immigrant visas.

The most common reason for denial is that the visa application is not processed to conclusion before the end of the program. At the interview, the consular officer tells the applicant that he or she must present additional documentation or that his application must undergo administrative processing. Even when the applicant submits additional documentation in a timely fashion, that does not mean that his application will be adjudicated before the deadline. Last year we wrote about how the US Embassy in Tashkent was not diligently finalizing the processing of pending applications, and instead collected new fees and reallocated visas to new applicants. Of course, all is not dependent on a consular officer: if an application does not receive final security clearances from Washington before the deadline, the consular officer is not authorized to issue the visa.

Some of the most bizarre Lottery-specific denials that we have seen over the years relate to photographs. One would think that if the State Department’s Lottery website accepted a photograph for entry that the photograph met the requirements. Not true, in the opinion of some consular officers. Many have disqualified applicants because the photograph in the DV-entry was not on a neutral background; was partially darkened; was not “recent”; or did not look like the person because they gained a lot of weight. These individuals and their families were refused by a consular officer after 1) the State Department accepted the DV entry; 2) the KCC did not disqualify the entry after selection; and 3) they paid the processing fees, bolstering the coffers of the government by tens of thousands of dollars in visa fees and allowing officers to reallocate the visas to other individuals.

“Pop-up” marriages – marriages after selection, but before the visa interview – are also targeted by consular officers for refusals – often times, justifiably so; other times, not. We previously wrote about the Ukrainian man who died of a stroke the day after being baselessly accused of entering a sham marriage by a consular officer. Another couple was permanently barred from the US for allegedly having a sham marriage; 10 years later, they are still happily married, have two children, but can no longer visit or immigrate to the US.

Other issues that arise at the visa interview include the education or experience credentials of the applicant (e.g., authenticity of the diploma); consular questions about whether the applicant will be able to support his family in the US or will become a public charge; the applicant’s failure to include a spouse or a child on the DV-entry; the presence of a relative in the US illegally; and the accuracy of past visitor visa applications.

For example, if the husband of the selected individual had previously procured a US visa under false pretenses and the consular officer found him to be subject to Section 212(a)(6)(C)(i) for a material misrepresentation, the family can immigrate through the DV program, but he would need to file for a waiver after his wife arrived in the United States. He would then need to have the waiver adjudicated before the end of the DV program for that fiscal year (or immigrate with a waiver based on a family immigration petition).

As one can see, the DV program can be wonderful for the thousands of individuals who win the Lottery and immigrate every year. For those who are selected and do not receive visas, the program can be a living nightmare – one that can haunt for years to come. To minimize your chances of being on the outside looking in, contact us to discuss your situation.

Posted in 212(a)(6)(C), 221(g), Consular Officers, DV-2015, Green Card Lottery, I-601, Immigrant Waiver, Sham Marriage, Visa Denial, Visa Refusal | Comments Off

Alien Smuggling – Hope for the Accused

Consular officers permanently bar more visa applicants every year for “alien smuggling” than any other provision of the Immigration and Nationality Act except misrepresentation. In 2012 alone, consular officers invoked the alien smuggling provision of the INA, Section 212(a)(6)(E), more than 6,000 times, an increase of more than 20% from the year before. What are the standards for a finding of alien smuggling, and what categories of people have been subject to this provision of the INA?

A consular officer can make an alien smuggling finding if he or she decides that a visa applicant has, at any time, knowingly “encouraged, induced, assisted, abetted or aided…” another alien “to enter or try to enter the United States” in violation of law. The Immigration Act of 1990 abolished the “for gain” requirement, so a consular officer does not need to find that the applicant had a profit motive or received money to make this finding.

These findings come up in a variety of scenarios. In the Diversity Lottery context, those who have been selected as “winners” and marry before their immigrant visa interviews are often found to be alien smuggling: entering the marriage in order to smuggle their new spouse into the United States in exchange for money. These “pop-up marriage” cases are subject to rigorous scrutiny, with spouses often subject to separate interviews in separate rooms, with personal questions posed, such as “what side of the bed does your spouse sleep on” and “what kind of toothpaste does she use.” The consulate can send investigators out to the apartment to see if they really are living together.

Other kinds of alien smuggling cases often implicate travel agents or anyone organizing a group tour. If a professor working at a university is responsible for organizing a seminar, and together with his students includes in the group an individual who is not a student, a consular officer could accuse the professor of alien smuggling. Even parents in the process of immigrating could be accused of alien smuggling if they include in their family someone who is not eligible to immigration, for example, a married child under the age of 21.

The good news is that many of these findings are overturned. For example, we have been very successful in getting alien smuggling decisions reversed in Lottery cases mentioned above. Usually, if the marriage is a bona fide one, the couple are able to evidence that the marriage is a legitimate one. This takes time and meticulousness in gathering and presenting this evidence. But if you feel that you have been subject to a wrong accusation of alien smuggling, feel free to contact us to discuss your situation.

Posted in 212(a)(6)(C), 212(a)(6)(E), Alien Smuggling, Family Immigration, Misrepresentation, Pop-up Marriage, Visa Fraud | Comments Off

No Statute of Limitations on Visa Application Lies

Let’s say you had a run-in with the law a long time ago. As a result, you were convicted of fraud. But it happened so long ago that you do not give much thought to it. So when you applied for a visa a few years back to visit your daughter and her children in the US, you did not indicate the conviction in the visa application form. You received the visa and used it to go to the US several times. You didn’t give much thought to it, until you decided to immigrate with your daughter’s help, and you had to obtain a police certificate. The police certificate indicated the conviction, but you were not worried because you had consulted a lawyer, who told you that although the conviction was for a crime of moral turpitude and did not qualify for the petty offense exception, a waiver was available. Moreover, the lawyer advised that the standard to obtain the waiver under Section 212(h) of the Immigration and Nationality Act was relatively simple to meet: because the crime of moral turpitude took place more than 15 years ago, you only needed to show that you had been rehabilitated, and that you did not pose a threat to the welfare, safety or security of the United States. End of story, right?

Not so fast, says the consular officer. He pulls up from the archive your visitor visa application from several years ago, where you indicated that you did not have a conviction. He shows it to you. You admit that you didn’t fill it in correctly but that under your country’s law, you do not need to indicate convictions more than 10 years old. The consular officer shows indifference to your attempt to justify the omission, saying that you “lied” to obtain a visa. Therefore, he is finding you permanently inadmissible to the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act for committing a willful, material misrepresentation. “OK, I can file for another waiver,” you say.

Not so fast. Unfortunately, there is no immigrant waiver available to parents of US citizens who have been found inadmissible under Section 212(a)(6)(C)(i). Only spouses and children of US citizens or permanent residents are eligible for a waiver under Section 212(i) of the Immigration and Nationality Act, not parents. Thus, such a finding is fatal to the immigration application. You think that instead of immigrating, you can continue to visit your daughter with a B-1/B-2 visitor visa. But the problem is that, while a nonimmigrant waiver is available for a visitor visa, you are unlikely to receive such a waiver because you have expressed an intent to immigrate to the US, i.e., you will not be able to overcome the burden of Section 214(b) to show that your planned visit to the US is temporary.

Of course, one can seek to challenge the consular officer’s finding that the misrepresentation was willful on your part, that you did not intend to mislead anyone. We would be happy to discuss with you such a possibility. But the lesson here is to be honest when applying for any US visa, and if you are unclear about a question on the application form, to consult with a lawyer, not a travel agent or visa consultant. (I wish I had a dollar for every time we have seen travel agents tell someone to lie or give wrong advice.) A consular officer can go back years and years and years to review previous applications – there are no statute of limitations. If you are unsure how you filled in a form, you can request a copy. But before applying to immigrate, you should think about this issue – and the potential lifechanging problems that may arise.

Posted in 212(a)(6)(C), Crime of Moral Turpitude, Immigrant Waiver, Misrepresentation, Nonimmigrant Waiver, Request For Reconsideration, Section 212(h) waiver, Section 212(i) waiver, Visa statute of limitations | Comments Off