No 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 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…
Read moreTop 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions – Part III
Posted onHere, we finalize our list of the top 15 trends and observations relating to Section 212(a)(6)(C)(i) – findings of willful, material misrepresentations: 11. The Role of ICE/HSI. Most individuals who have either submitted a work or immigration petition or application or entered the United States are familiar with the government agencies involved in those processes – US Citizenship and Immigration Services (USCIS) and Customs and Border Protection (CBP), respectively. And many are familiar with Immigration and Customs Enforcement (ICE) as the “immigration police”: ICE enforces US immigration laws within the United States. But not many are aware that the Homeland Security Investigations (HSI) branch of ICE has officers embedded into certain consulates overseas and that those officers make findings of inadmissibility. ICE denies that it makes such findings – its position is that it is the consular officer who makes such findings, not ICE. However, we have seen internal government…
Read moreFires and Visas: More in Common than You Think (Or the Importance of the DS-160 Visa Application)
Posted onIt is fire season here in California, and inevitably talk turns to what could have been done to prevent the latest big fire, that the fire could have been prevented if only…. The lessons learned are so applicable to visas that I even have a painting of firemen and a firetruck in my office. Clients come to me with a “five-alarm fire,” and often my first thought is what could have been done to prevent the fire. Sometimes, the problem is as simple as correctly and properly filling in the DS-160 visa application form or even having a copy of the visa application form. In many of these consultations, inevitably the topic turns to what was indicated in the visa application form. I ask for a copy of the DS-160 visa application form and the client does not have one. The client attempts to reconstruct the application or tries to…
Read moreI-601 Waivers and Challenges to 212(a)(2)(A)(i)(I) Decisions
Posted onHeartbreaking are the immigrant visa cases when, because of a youthful indiscretion or transgression, the applicant is denied the visa to join a spouse or parent or child in the United States under Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act. This section of the law renders a person permanently inadmissible because of a conviction or admitting to committing a crime of moral turpitude. Thankfully, there are solutions. One solution is to challenge the decision. In a case we recently handled, the applicant had been denied an immigrant visa as the husband of a Lottery winner on these grounds, and then 10 years later, denied again as the parent of a US citizen on these same grounds. But the criminal case which was the basis for this visa refusal decision had been terminated before a final decision was made by the judge because of an amnesty. We challenged the 212(a)(2)(A)(i)(I)…
Read more5 Years? 10? 20? How Far Back Will a Consular Officer Look for a Misrepresentation or Alien Smuggling?
Posted onPeople 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…
Read moreSurrender is Not an Option. AZTech, Integra Technologies, Andwill, and Wireclass Update II
Posted onThank you for all of your questions related to AZTech, Integra, Andwill, and Wireclass. The dramatic upsurge in questions corresponds to the mass issuance of Requests for Evidence (RFE) and Notices of Intent to Deny (NOID) by USCIS to I-765 STEM extension applicants and H-1B petitioners. The texts of the NOIDs and RFEs are relatively standard. For example, one of the RFEs states: Provide your complete employment history (including start and end dates) and proof of employment for your initial grant of Optional Practical Training (OPT). Evidence of employment may include but is not limited to: Letters for employer(s) establishing jot title(s), duties, location, pay rate, and number of hours worked per week. Copies of your earning statements/pay stubs. Copies of your W-2s. If you worked for an employment agency or consultancy, you must provide evidence of the jobs you worked on and dates worked. Additionally, if you…
Read moreInnocent Visa Applicants Applying for Nonimmigrant and Immigrant Waivers
Posted onWith the dramatic upsurge in consular decisions to permanently bar visa applicants from the United States, the question of applying for an immigrant or nonimmigrant waiver has become more and more acute. Many immigration lawyers will advise to just accept the decision, admit that you were wrong, say you are sorry, and apply for the waiver. They say that your chances of receiving the waiver will be increased if you admit your guilt and express remorse, even if you did not do anything wrong. But what if you are not “guilty”? What if you did not commit a material misrepresentation (Section 212(a)(6)(C)(i))? Or engage in alien smuggling (Section 212(a)(6)(E))? Or commit a crime of moral turpitude (Section 212(a)(2)(A)(i)(I))? Should you admit you were wrong? Of course not. There are legal mechanisms to challenge such lifechanging decisions, such as a Request for Reconsideration. Sometimes, the supervisor of the consular officer or…
Read moreJust Because They Say So, Doesn’t Make It True
Posted onI received a frantic call from a client recently at her naturalization interview. She was being advised by the interviewing officer that her application was going to be denied because she did not meet the residency requirements. In the run-up to the interview, the client and I had reviewed all of the relevant legal issues, including the physical presence and continuous residence requirements, and I assured her that she met the requirements for naturalization. The officer was kind enough to speak with me over the phone, but remained unpersuaded from her position that the residency requirements were not met. The client left the USCIS office and went home extremely upset, notwithstanding my attempts to calm her down and assurances that we were in the right and would be able to challenge any adverse decision. And then, two hours after the interview, something strange happened: I received an e-mail notification from…
Read moreImmigrant Waivers – New Hope for the Refused?
Posted onPreviously, 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…
Read moreDV-2015 Lottery Fever
Posted onCongratulations 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….
Read moreNo Statute of Limitations on Visa Application Lies
Posted onLet’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….
Read moreWhat do bad plumbing and waiver applications have in common?
Posted onWe’ve all seen the commercials with stunt cars and daredevil tricks, and the disclaimer at the bottom stating “Professionals at work. Do not try this on your own.” That is why it is surprising that people with the means to hire a qualified lawyer to prepare a waiver application often do not do so: they are determined to try it on their own. The stakes could not be higher – an approval means a reunion in the United States for those located overseas, a denial can mean a lifetime of separation and the shattered lives of children – yet people are willing to learn as they go, to “experiment” on their own, to use whatever it is they can learn on the Internet to prepare their cases. Waiver law is complicated, and preparing a waiver application requires skill, creativity, and experience. Even if a 601 or 212 application is denied,…
Read moreExtreme Hardship, Extreme Luck, or Extreme Lawyering – USCIS Immigrant Waiver Approval Rates
Posted onIn the attached file are the most recent approval statistics for USCIS offices within the Rome District. Noteworthy is the wide disparity in I-601 approval rates: for example, the Rome office approves only 25% of the applications while Frankfurt approves 76% (presumably, this is associated with the large number of US military personnel stationed in Germany). The Accra, Ghana field office, which has jurisdiction over Ghana, Benin, Burkina Faso, Cameroon, Cape Verde, Chad, Cote d’Ivoire, Equatorial Guinea, Gabon, Gambia, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Sao Tome and Principe, Senegal, Sierra Leone, and Togo, has an approval rate of 22%. The Nairobi, Kenya office, on the other hand, which accepts applications from Burundi, Central African Republic, Democratic Republic of Congo, Republic of Congo, Djibouti, Ethiopia, Eritrea, Kenya, Rwanda, Seychelles Islands, Somalia, Sudan, Tanzania, and Uganda, has an approval rate of 70%. The Johannesburg, South Africa office (Lesotho, Swaziland, Mozambique, Namibia, Angola, Zimbabwe,…
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