The “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 moreMassive Visitor Visa Interview Delays Mean High Stakes for Applicants
Posted onBelow is a table of the current interview wait times for B-1/B-2 applications at certain embassies and consulates around the world. Despite promises from the Department of State, the massive wait times in most countries, as you can see, have not been reduced. City October 7, 2022 March 24, 2023 May 19, 2023 Rio de Janeiro 347 449 449 Sao Paulo 338 554 595 Brasilia 315 469 483 Mumbai 825 332 507 New Delhi 833 247 379 Hyderabad 459 246 351 Chennai 780 680 337 Kolkata 767 357 490 Guadalajara 806 664 731 Mexico City 641 695 730 Tijuana 555 541 567 Lagos 735 486 563 Abuja 850 409 307 Madrid 380 329 335 Paris 520 50 93 London 34 89 90 Berlin 58 87 42 Prague 100 16 105 Outrage is growing among the American business community, as wait times exceed 1 year (!) for an interview at dozens…
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 moreHow WhatsApp Messages Can Lead to Cancelled Visas, Expedited Removal, and Permanent Bans
Posted onJust because you have arrived at an airport in the United States does not mean that you are protected by the US Constitution and the right to be free from unreasonable searches. This is the unfortunate lesson learned by hundreds of travelers each day to the US. Worse, the messages on one’s own phone can lead to a cancelled visa, a return trip home, and a permanent ban on entry. As international travel has reemerged after the pandemic, so have the problems experienced by international visitors to the US. Just over the past few months we have conducted numerous consultations with individuals subject to intrusive CBP searches at the airports, including luggage checks and the contents of telephones. These searches have led to accusations of unlawful employment (most common), prostitution, drug use, intent to remain in the US beyond the length of permitted stay, intent to marry, and intent to…
Read moreAZTech, Integra Technologies, AndWill, and Wireclass Update VI: Operation Bad Apple.
Posted onWe have been able to review some of the government documents relating to the DHS investigation of these companies. Needless to say, the documents are eye-opening. The government investigation into the OPT scandal is entitled Operation Bad Apple. But unfortunately, DHS considers not only the people behind AZTech, Integra, Wireclass and AndWill as the “bad apples,” but the F-1 students who were associated with them as well. Lest there be any doubt, the DHS documentation makes clear: these OPT sponsors were “shell companies”. These companies produced “fraudulent employment letters for F-1 students on OPT, STEM OPT, and CPT.” They used “virtual offices” and are not “legitimately operating businesses.” In retrospect, we all know that. But the broad brush which DHS paints the students – as knowing participants in fraud – is alarming. There does not appear to be any gray area. Per DHS, the students did not work for these…
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 moreVisa Revocations and OPT
Posted onThe consequences of the Immigration and Customs Enforcement (ICE) investigation of the US companies Findream, Sinocontech, AzTech, Integra Technologies, Wireclass, and Aandwill are now becoming evident. Thousands of students and young professionals, primarily Chinese and Indian, have had their visas revoked because of their past association with these companies. Worse, it appears that the US Government has presumed that these individuals were aware of the fraudulent nature of the offers of training to comply with the Optional Practical Training program requirements and is entering decisions to permanently bar them from the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act (“6C”). For many of these individuals, it does not have to be this way. A US government official can only make this determination based on an individualized review. Everyone’s circumstances were different. What was his or her specific intent at the time of accepting the training offer? Was…
Read moreA Visa Applicant’s Bill of Rights – What the Department of State and Your Local US Embassy/Consulate Often Do Not Want You to Know
Posted onFor visa applicants, the cards seem to be stacked against you. Among the hurdles a visa applicant must face: The law places the burden on the visa applicant to prove eligibility for the visa and that he or she is not inadmissible to the United States. There are inadequate consular resources; at busy posts, consular officers can only allot a few minutes to a visa adjudication. There is no formal administrative appeals process of a visa denial (no Administrative Appeals Office, Board of Immigration Appeals, Board of Alien Labor Certification Appeals). With limited exception, there is no judicial review of visa decisions because of the doctrine of consular reviewability. There is limited public accountability: no Department of State (DOS) Visa Ombudsman, no formal Complaint Procedure, and no formal recusal process. Section 428 of the Homeland Security Act grants the Department of Homeland Security (DHS) a vital role in the visa…
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 moreVisa Myth #981 – “If I get a 2nd Passport, My US Visa Problems will be Solved.”
Posted onThis 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…
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 moreRights of Visa Applicants
Posted onYou 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…
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….
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