EB-3 Blues (or Jason from Friday the 13th coming back again)
Posted onConsular zealotry knows no bounds. That is the impression that I am getting after conducting a flurry of consultations on visa denials related to EB-3 cases. After an EB-3 immigrant visa is denied at the Embassy, the I-140 approved petition is referred back to USCIS for review, often with an accusation against the applicant about a supposed willful, material misrepresentation. Compounding the problem, sometimes the petitioner-employer in the US decides not to continue the process or the applicant changes his or her mind and decides to pursue other immigration options (e.g., if has a US citizen adult child). But like that evil jack-in-the-box or Jason in Friday the 13th, the “bad guy” – the misrepresentation allegation in the form of a Section 212(a)(6)(C)(i) finding – pops up out of nowhere when you least expect it, years later when applying for a new, different visa. This then complicates the ability to…
Read moreHave an I-601A Approval? Think Twice Before Leaving the United States.
Posted onAfter waiting years, your I-601A Application for Provisional Unlawful Presence Waiver was approved. Congratulations. And now it’s time to travel outside the US, apply for and receive an immigrant visa, and return to the US with a clean slate, right? Well, not necessarily… Not if ill-intentioned or overzealous consular officers have anything to do with it. There is a popular misconception that if you have an approved I-601A, USCIS has reviewed the entirety of your immigration history and forgiven any violations. That is wrong. USCIS has only considered your unlawful presence violation and found extreme hardship to your qualifying relative. But do you remember that visa that you applied for 25 years ago? And that you later used that visa to enter and remain in the US? The consular officer has not forgotten. Now, in such situations, these officers are increasingly entering permanent bars for a Section 212(a)(6)(C)(i) willful, material…
Read moreNo Statute of Limitations on Challenging a Permanent Ban for a Mistaken Misrepresentation, Alien Smuggling, or Crime of Moral Turpitude Visa Decision
Posted onFair is fair, right? Consular officers can and do impose permanent bars for an alleged misrepresentation in a visa application form or entry to the United States from 5, 10, 20, 25 years ago. For example, we have seen some crazy decisions at visa interviews based on a supposed misrepresentation made to an airport inspector decades ago about their true intent – triggered by application of the so-called 90-day rule. But on the flip side, did you know that there are no time limitations on when you may challenge a consular visa decision to permanently bar you from the United States? If the visa decision made to permanently bar you for a misrepresentation, alien smuggling, or conviction of a crime of moral turpitude was made last week, last year, last decade, or even 35 years ago and it was wrong then, it is wrong – and continues to wreak havoc…
Read moreThe “Beautiful” Nonimmigrant Waiver
Posted onThe beauty of obtaining a nonimmigrant waiver? That once you receive one, going forward, you will almost automatically receive the second one, and the third one, and the fourth one…. But the trick is – obtaining that first one… The nonimmigrant waiver process is rather straightforward. For most applicants of the nonimmigrant waiver (also known as a Section 212(d)(3)(A) or Hranka waiver), there is no application form and there is no filing fee; you simply request the waiver at the visa interview. If the consular officer recommends the waiver, then Customs and Border Protection will usually agree with the recommendation and grant the waiver. The consul will then issue a visa with a waiver annotation. So how to obtain that elusive consular recommendation? Well, if the applicant is applying for a B visitor visa or a F student visa, he/she must overcome his/her 214(b) burden first before the consul will…
Read moreHumanitarian Parole – The Last Chance
Posted onThe Department of Homeland Security’s Secretary has the authority to grant parole into the United States for foreign individuals in urgent medical or humanitarian situations or during emergencies. Humanitarian Parole is typically considered a final opportunity for entry into the US for individuals who do not qualify for a visa through standard means. The evaluation process for these requests is rigorous, with approximately three-quarters of humanitarian parole applications rejected. It is granted on a case-by-case basis and should not be used to bypass regular visa procedures or applications for refugee status. To illustrate the various situations in which humanitarian parole may be used, below we can provide a few case studies from our own experience. For example, after an encounter at the airport in the US, one client was paroled into the United States for one month. But he was not given a copy of his Record of Sworn Statement…
Read moreFreedom of Information Act (FOIA) Requests for Visa and Immigration Cases
Posted onA FOIA request can be extremely helpful to find out what information a government agency has; to clarify dates; and to “re-construct” a file in a case where documents were lost or misplaced. Such a request can be critical to overcome a finding of inadmissibility in visa cases, in particular, such as accusations of misrepresentations, alien smuggling and unlawful presence. All agencies of the Executive Branch of the United States Government are required to disclose records upon receiving a written request for them, except for those records protected from disclosure by exemptions (e.g., law enforcement, security, and privacy reasons). As a general rule, the Government does not charge fees for conducting the search, although it reserves the right to do so. What makes the FOIA process challenging is that there is no central office which processes FOIA requests for all federal agencies. Therefore, it is necessary to determine which agency…
Read moreOvercoming Section 214(b) of the Immigration and Nationality Act
Posted onOn average, more than a million visa applicants are rejected every year under Section 214(b) of the Immigration and Nationality Act. Nonimmigrant visa applicants, excluding H-1B and L-1 visa holders, bear the responsibility of demonstrating their non-immigrant intent. Under 214(b), applicants must not only qualify for the visa but also agree to adhere to its terms upon entering the US. For B visa applicants, proof of a foreign residence and temporary visit intentions for business or pleasure is necessary. F visa applicants additionally need to demonstrate both qualifications for studies and the intent to return home after completion. Employment visa seekers must exhibit qualifications relevant to their visa type. Notably, there’s no time restriction on invoking 214(b); for instance, prolonged previous stays in the US leading to suspected employment violations more than 10 years ago can prompt its application. Consular officers commonly resort to visa revocation. This affects thousands annually…
Read moreComparison of Immigrant Waivers
Posted onThe journey to obtaining permanent residency in a new country can be fraught with challenges, and for many immigrants, overcoming certain legal barriers is a crucial step in this process. One such hurdle is the need for immigrant waivers, which allow individuals with specific grounds of inadmissibility to immigrate and continue their pursuit of a better life. Ideally, one would not need a waiver, and as illustrated throughout this site, if you believe that there was a factual or legal mistake made in the decision to bar you, you should certainly challenge that decision first. Here, we will delve into and compare three types of immigrant waivers, each of which are submitted on Form I-601. 212(a)(6)(C)(i) Misrepresentation A waiver for a willful, material misrepresentation is available to a spouse or child of US citizen (USC) or Legal Permanent Resident (LPR). The legal standard to qualify for the waiver is “extreme…
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