Myth #4 – Having a real relationship with a US citizen means you will get a fiancée or spousal immigrant visa

From India to Saudi Arabia to Armenia to the Philippines to Vietnam, the US Government is cracking down on bogus relationships – and real ones too. The events in San Bernardino a couple of years ago – when a woman who came to the US on a fiancée visa and her US citizen husband killed 14 people – triggered a government crackdown and more rigorous scrutiny of fiancée and spousal visas.  Unfortunately, we are seeing how many legitimate visa applicants are being victimized – and ending up in Visa Hell as a result.

Consular officers have a difficult job – trying to distinguish between a real relationship and a sham one. The visa applicant is asked a lot of questions at the interview about the US citizen petitioner, his family, employment, and meetings. Where does he live? Where do his parents live? How many people attended your wedding? When was the last time you saw each other?  Who attended the wedding? What is his job? How many times did you meet before the wedding? How many brothers and sisters does he have? What rituals did you do at the ceremony? Was he previously married? Where was the reception? Did he file a fiancée petition for a woman before you? Do you have any relatives in the US? The list goes on… One or two wrong or inconsistent or suspicious answers can lead to a visa denial and allegations of fraud, which carry a lifetime bar from the United States.

In reviewing spousal and fiancée petitions, USCIS has a list of indices of a sham marriage or bogus relationship. Consular officers consider similar factors, such as a) large disparity of age; b) inability of petitioner and beneficiary to speak each other’s language; c) vast difference in cultural and ethnic backgrounds; d) family and/or friends unaware of the marriage; e)  marriage arranged by a third party; f) discrepancies in answers to questions of which a husband and wife should have common knowledge;  g)  beneficiary is a friend of the family; and h) petitioner has filed previous petitions on behalf of prior foreign fiancées or spouses.  The factor du jour seems to be the size of the wedding: a small, simple wedding – regardless of the reason – equates to a visa denial, particularly in countries where largescale weddings are the norm.

Another problem encountered by some is the case of the “benevolent” consular officer.  Most consular officers are honest, intelligent professionals, but from time to time a US citizen petitioner may encounter an overzealous officer with good intentions.  The benevolent officer “knows” the beneficiary and her intentions better after a 5 minute interview than the US citizen does after an 18 month relationship.  He “knows” that she is up to no good, is really deceiving the US citizen just to get a green card.  He knows the language and local culture, so in his opinion, he is better positioned to judge the sincerity of the relationship than the US citizen.  He accuses the beneficiary of fraud – without regard to the US citizen. His opinion overrides the US citizen petitioner’s.

One lesson that should be drawn is that the relationship needs to be documented as well as possible from the beginning in order to minimize suspicions or questions about the legitimacy of the relationship.  The typical petition should contain dozens of photographs, e-mails, text messages, wedding reception receipts, plane tickets, passport stamps, flower receipts, postcards, and social media posts.  Tying it together should be a detailed explanation from the US citizen petitioner about the relationship. If any of the above suspicious factors are present (such as a small wedding or large age difference), it should be addressed in the explanation.  Of course, if the pair have any joint children, property, accounts, and insurance, that documentation should also be included.

Another lesson to be learned is that US citizens have rights – rights to proactively challenge the decision of the consular officer or USCIS.  A US citizen should not be idle or passive when dealing with the US immigration bureaucracy.  Only by asserting those rights can you hope to be reunified with your loved one in the United States. Contact us if you are encountering problems or delays with your case.

Posted in Fiancee Visa, K-1 visa, Revocation, Sham Marriage, Spousal Visa, US Embassy Delhi, US Embassy Manila, US Embassy Vietnam, US Embassy Yerevan, Visa Fraud | Leave a comment

Parole – The “Hail Mary” Option

The granting of parole was recently in the news. As discussed elsewhere on this site, parole is the “last chance” after other visa options have been exhausted.  A sympathetic case was the recent approval for a team of girls from Afghanistan to participate in a robotics competition in the United States.  Their B visa applications had been denied twice by the US Embassy in Kabul.  An outcry ensued, with the President apparently intervening.  DHS then issued the special parole permission for all of the girls and their coach to enter the US to compete. More details can be found in this Washington Post story.

A stranger situation revolves around the case of the Russian lawyer caught up in the election collusion scandal.  Apparently, she had been denied US visas, but eventually was granted parole so that she could attend court hearings in the US on behalf of a client.  The LA Times provides some background.

These cases show the disparate uses and possibilities in applying for parole – either humanitarian parole or significant public interest parole.  Most humanitarian parole applications center on medical emergencies, family separations, or sympathetic circumstances. We have had particular success in helping those with “split families” – parents in the US as permanent residents, with minor children stuck outside the US because they are no longer eligible for Diversity Lottery visas or subject to long visa lines.  While the average humanitarian parole application takes approximately 4-5 months to adjudicate, review can be expedited, as can be seen in the Afghan girl case.  In addition, it has become more feasible to obtain humanitarian parole; while the approval rate used to hover around 25%, it has recently increased to over 40%.

While the documentation requirements for a humanitarian parole application can be very strict, securing humanitarian parole has become much more of a realistic hope for those with truly no visa option. Please contact us to discuss how we may help.

Posted in Department of Homeland Security, Humanitarian Parole, Visa Denial, Visa Refusal | Leave a comment

Myth #3 – A Consul can “close” a nonimmigrant visa application

Z contacted our firm recently with an unusual request: help him submit a new B visa application to a US consulate after he was told that his previous application was “closed.”  Not understanding exactly what this meant, I asked him to forward any correspondence he had received from the consulate.

The correspondence stated that because more than one year had elapsed since his interview, the case had been closed administratively and that if he wanted to pursue a US visa, he would have to reapply again.  A reapplication meant that he would have to submit a new DS-160 application form and pay a new visa application fee. But this was wrong – his application had been pending under Section 221(g), and the US government failed to take any action on his application. The government cannot “sit on” an application and then use that non-action to “close” a case. If that were the case, think of the visa fees that the US could collect: it would be incentivized not to do anything.

While a consular officer has the right to require the submission of a new visa application after more than one year elapsed from the date of the interview, there is no right to collect additional visa application fees.

If your visa application has been “closed” and no decision was made on it, please contact us.

Posted in 221(g), Consular Officers | Leave a comment

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.

Posted in Citizenship, Department of Homeland Security, Naturalization | Leave a comment

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.

Posted in 214(b), B Visa | Leave a comment

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.

Posted in Uncategorized | Leave a comment

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