5 Years? 10? 20? How Far Back Will a Consular Officer Look for a Misrepresentation or Alien Smuggling?

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People thought that with the passing of the Trump Administration, Department of State visa policies would become more tempered and that enforcement would moderate from the Trump-era extremes.  People, unfortunately, could not have been more wrong. Statutes of limitations exist for good reason: due process, basic fairness, evidence that becomes stale over the years, the disappearance or death of witnesses, fading memories, and to prevent inconsistent decisions.  But as discussed in a previous blog, there is no statute of limitations in visa law. And so consular officers are free to go back and review previous visa applications and time spent in the United States to determine whether a misrepresentation (Section 212(a)(6)(C)(i))  had been made at the time of the visa application or at the time of entry to the United States, or whether the individual had engaged in alien smuggling (Section 212(a)(6)(E)).  Critically, this holds true whether a consular officer…

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COVID-19, Extensions of Status, and Section 222(g) of the Immigration and Nationality Act

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With the raging of the pandemic, cancelled flights, and travel restrictions, thousands of visitors have been stranded in the United States.  While some legal relief has been provided for delayed departures for those who entered without visas under the Visa Waiver Program, very little has been discussed about those who entered the US with visas and have been unable to leave within the allotted time frame. As a reminder, holders of B-1 and B-2 visas are usually granted 6 months of authorized stay when they arrive in the US.  If a person overstays this authorized time frame, the visa becomes void under Section 222(g) of the Immigration and Nationality Act. What this means is that even if the visa itself has validity time remaining, it nevertheless becomes null and cannot be used. For example, if in June 2019 a B visa was issued for 10 years through June 2029, and…

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40 Reasons for F-1 Student Visa Denials

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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.

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

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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: The visa holder must remember that when he applies for a visa…

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FAQ on New Public Charge Rules – Part 1: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

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What are the new Public Charge Rules? Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible immigrants who are “likely at any time to become a public charge”.  Practically speaking, in the past, if the sponsor in the United States had sufficient income (more than the poverty level) or assets, then the immigrant successfully received the visa or adjusted status. Now, the focus will be on the immigrant him or herself. The examiner will consider the personal circumstances of the immigrant: is it likely that he or she will become a public charge at any time in the future?  The circumstances to be reviewed include age, health, family size, financial resources, education and skills, and sponsor.  In short, this rule will adversely impact the elderly or soon-to-be-retired; those with medical conditions; the less educated; those with large families; those with few job prospects in the United States; those who…

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E-2 Visa Denials

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One usually does not associate the US Government Accountability Office with “interesting” reports, but last year’s report on E-2 visas was eye-opening.  Of particular note are the reasons why E-2 applicants are denied.  While the report is limited to examining certain countries, it provides critical insight into the thinking of consular officers and obstacles to obtaining E-2 visas. As a reminder E-2 visas are limited to nationals of countries with whom the United States has commerce and navigation treaties. The full list of countries can be found on the Department of State’s website, with 80% of all E-2 applicants originating from 9 countries: Japan, Germany, UK, France, Canada, Mexico, South Korea, Italy, and Spain. The majority of E-2 visa applicants are related to large investments (>$10 million) – think of managers and essential employees going from Japan to work in a large car plant in the United States.  However, the…

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No Statute of Limitations in Visa Law – A Distressing New Phenomenon with Tragic Consequences

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Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5-7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions.  But there is no statute of limitations in visa/immigration law. With some exceptions, until recently, this has not been a significant problem.  But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions.  They are re-opening and reconsidering suspected visa violations – with no limitation of time or past consular “exoneration”.  Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago –…

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Challenging Visa Denials and Revocations after an Interpol Red Notice or a Kangaroo Court Conviction

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Interpol conjures up images of a worldwide police tracking down “bad guys” on the run from home country authorities.  But Interpol is not a law enforcement agency: it does not issue warrants and does not have the authority to make arrests.  While the overwhelming majority of Interpol’s information-sharing capacity is dedicated to tracking down true “bad guys”, many home country governments abuse it. They manipulate Interpol into doing their dirty work, making bogus allegations to locate dissidents, political activists, and whistleblowers. As a result, Interpol issues Red Notices based on bare allegations made by a government – for example, fraud – not evidence, with a view to extraditing that person back to that country. Yet consular, Customs and Border Protection, and Immigration and Customs Enforcement officials erroneously use the Red Notice as shorthand to deny visas, detain individuals at the border, and arrest them inside the United States. It is…

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Visa Myth #981 – “If I get a 2nd Passport, My US Visa Problems will be Solved.”

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This myth has been going around for years – no doubt perpetuated by representatives of 2nd passport programs.  A national of Country X has US visa problems – because of a criminal incident 20 years ago making him inadmissible to the US.  He decides to obtain a passport from a European Union country by making a very substantial investment.  Because he has been told that nationals of his new country are eligible for the Visa Waiver Program (VWP) – a program that allows for travel as a tourist or business visitor to the US for up to 90 days without a visa, with no visa interview required – he is under the impression that he should qualify too.  Until he reads the fine print – or consults with a US immigration lawyer. Before boarding a flight to the US without a visa, citizens of VWP countries pre-register with the US…

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The Culture of No and 214(b) Student Visa Denials

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The Department of State does not publish separate statistics for student visa denials, but judging by the number of phone calls we have been recently receiving from rejected students on Section 214(b) grounds, it appears that the Culture of No has adversely impacted potential students as well.  In particular, consular attention – and denials – has been riveted to certain categories of students, including:  1) those older than the age of 25; 2) those planning to attend community college in the US; 3) those from economically distressed or provincial areas of the home country; 4) “eternal” students; 5) those with planned majors at the US university deemed to be of less practical value; 6)  those with significant gaps in their work history; 7) those who previously dropped out of school; and 8) financial sponsors who are not immediate relatives. Consuls have very little time to conduct a student visa interview,…

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Stunning Newly-Released Department of State Statistics Show Increases in Public Charge, Misrepresentation, Alien Smuggling, 214(b) Denials

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The statistics stun – even the most callous observer.  In just two years, the number of individuals denied immigrant visas under the public charge section of the law (Section 212(a)(4) of the Immigration and Nationality Act) has increased more than 12 times!  Alien smuggling (Section 212(a)(6)(E)) findings doubled for immigrant visa applicants over the past year.  Misrepresentation (Section 212(a)(6)(C)(i)) decisions for these applicants increased by more than 25%.  214(b) denials for those applying for nonimmigrant visas – more than 2.7 million – also edged upwards. The Department of State’s statistics table lists more than 50 visa ineligibility grounds. But one is hard pressed to remember such a radical increase in denials for a single ineligibility as with the public charge provision over the past two years. Incredibly, this massive increase is not a result of any changes in or amendments to the law itself. This would take congressional action. Rather,…

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Cheap is Expensive. How Paying for a Visa Consultation Can Save You from a Visa Denial.

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Every day, we receive e-mails such as these: “Hello, I was denied a Returning Resident Visa. Can you help?” “Good day. I have traveled to the US 10 times over the past 5 years and never had a problem. When I tried to board the plane to the US last week, I was told that my visa was revoked. Can you assist?” “Last summer I was barred from entering the US for five years. What are my options?” Not to be macabre, but imagine that you were diagnosed with cancer, and on the Internet, you look up the names of some cancer doctors, and you sent them e-mails, asking whether they can help you? What would the doctor respond? Similarly, when it comes to US visas, the only way to truly assess a case is by having a detailed discussion – about your personal circumstances, about what was indicated in…

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Visa Revocation – Not Just Related to Criminal Activity

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Most people understand that if they are arrested, it is possible that their visas will be revoked.  DUIs, drug possession, domestic violence, shoplifting – these are just some of the situations in which individuals with valid visas have their visas revoked.  But what is less known – and understood – is that the Department of State has the ability to revoke visas for any reason in which eligibility is questioned.  In other words, the inquiry into whether an individual qualifies for a visa does not stop at the time of issuance; it is a process that can be – and often is – reactivated at any time after issuance.  In fact, we are seeing more revocations for non-criminal issues than criminal problems. So what leads to this re-examination of an individual’s eligibility? The trigger points for such a “verification reactivation” are numerous.  For example, consular officers conduct validation studies, checking…

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Rights of Visa Applicants

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You have rights.  Yes, if you have been denied a visa, you have rights. The Department of State’s Customer Statement lists only some of those rights, as follow: We promise to you, the visa applicant, that: We will treat you with dignity and respect, even if we are unable to grant you a visa. We will treat you as an individual and your case as unique. We will remember that, to you, a visa interview may be a new or intimidating experience and that you may be nervous. We will use the limited time available for the interview to get as full a picture as possible of your travel plans and intentions. We will use our available resources to fairly assist all applicants to get appointments to allow travel in time for business, study, and other important obligations. We will post detailed and accurate information on visa requirements and application…

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