2017

US embassies and consulates abroad adjudicate more than 13 million visa applications a year, so when changes are made to the rules governing visa decisionmaking, the potential impact can be enormous. That is the case with two recent changes in the Foreign Affairs Manual, the State Department’s guidance to consular officers making visa decisions.  The revisions, unfortunately, are not for the better for visa applicants. 90 Day Rule The most important change – with the most severe potential consequences – relates to the pronouncement of a new 90 day rule.  This rule supplants the previous 30/60 day guidance. The 90 day rule states that “if an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry,” the consul may presume that the “applicant’s representation about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa…

As immigration enforcement ramps up, with more scrutiny and rigor exhibited by the government agencies involved (ICE, USCIS, DOS), one should not forget the role played by Customs and Border Patrol. Because they may have a visa, people tend to forget or underestimate the role played by the airport inspectors.  Those arriving at an airport are considered “applicants” for entry, and they are only admitted after the CBP inspector makes a decision on admissibility. Just like the other agencies, CBP has also heard the call for more vigorous enforcement of our laws, and is now actively engaged in screening out “undesirables” and visa violators.   Now that the government is much more interconnected than it was even 3-5 years ago, this means that the CBP inspector has access to information contained in visa applications and petitions. Another section of our website discusses in more detail the process of expedited removal, but…

As is well-known, most employment and family cases involve a two-step process: 1) the submission of a petition to USCIS for approval; and 2) the completion of a visa interview at a US consulate or embassy outside the United States.  So why is it that many lawyers do not provide legal support for the visa interview? This issue has become more acute as consular officers have become more aggressive in questioning the bona fides of the underlying petition.  While they are not supposed to readjudicate the approval – substitute their opinion for USCIS’ – they can find “new, material” information to justify the referral of the petition back to USCIS for revocation.  This aggressive questioning has become more pronounced since the issuance of the President’s Executive Order to protect US workers. In light of the executive order, the Department of State updated its guidance to consular officers in adjudicating nonimmigrant…

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 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…

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…

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…

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…

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.