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 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 moreAzTech, Integra, Wireclass, Andwill Update: We Have Obtained Shocking Internal ICE Documents Concerning its Investigation. Part 2.
Posted onIn Part 1, we described the materials recently received from a Freedom of Information Act request to Immigration and Customs Enforcement. The materials are not only eye-opening but indeed shocking: they show that the students were let down by delinquent government and university actors that failed to warn them of the scam. Most mind-boggling: the US government is now using its own delinquency as a sword against these students in permanently barring them from the United States and using shell-game tactics to make it is as difficult as possible to challenge the bars. Here, we provide additional details from those ICE reports: The Homeland Security Investigations Wilmington office identified approximately 1,925 STEM OPT students associated with AzTech. HSI administratively arrested 15 STEM OPT students. (An administrative arrest is the arrest of a foreign individual for a civil – not criminal – violation of U.S. immigration laws. These cases are then…
Read more“What has Changed Since Your Last Interview?” Consular Abuse of 214(b)
Posted onHave you ever been refused a visitor (B) or student (F) visa and re-applied again a short time later, and when you attend your new interview, the consular officer asks you: “What has changed since your last interview?” And within seconds or a minute or two, the consul then handed you a refusal sheet – again? The funny thing is – well, it is not-so-funny – there is no such legal requirement to show that something changed in your circumstances in order to qualify for the visa. The Department of State and the consular officer concocted this “requirement” out of whole cloth: it’s fictitious. Section 214(b) of the Immigration and Nationality Act has two requirements for B and F visa applicants: 1) overcome the presumption that he or she is an intending immigrant to the United States; and 2) qualify for the visa. To qualify for a visitor visa, the…
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 moreTop 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions – Part II
Posted onLast week we began the list of the top 15 trends and observations relating to the consular imposition of permanent bars under Section 212(a)(6)(C)(i) for willful, material misrepresentations. Hopefully, this will inform and educate as you plan for future visa applications. Here, we continue that list: 6. OPT Fraud. Much ink and many tears have been shed over the OPT scandal, with the full impact only now being felt. Starting in 2020, thousands of individuals have been permanently barred from the US for their association with scam OPT companies, such as Findream, AZTech, Integra, Wireclass, and Global IT Experts. More can be read about this scandal on our blogs, but suffice to say that the consequences will be felt for the rest of the lives of not only these individuals, but close family members and American employers as well. Instead of being able to live the American dream, these talented…
Read moreTop 15 Trends and Observations in 212(a)(6)(C)(i) Visa Decisions
Posted onUnlawful presence (212(a)(9)(B)), misrepresentations (212(a)(6)(C)(i)), and alien smuggling (212(a)(6)(E)) continue to be the most frequently invoked inadmissibility bars to entry to the United States by consular officers. And while unlawful presence based on overstays in the United States is a relatively straightforward legal decision, determinations of willful, material misrepresentations and alien smuggling are not. How does one define “materiality”? Was the misrepresentation actually “willful”? What does it mean to “aid and abet the illegal entry” to the United States? This 3-part blog will focus on the latest trends in consular misrepresentation (“6Ci”) decisions; later, we will address recent trends in smuggling (“6E”) adjudications. Notwithstanding the pandemic and the limited operations of consular posts, the rendering of 6Ci determinations continues unabated. In the pandemic years of FY2020 and FY2021, consuls entered more than 17,000 misrepresentation findings. During this time, we have observed the following: Politics is Overestimated. Many thought that with…
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 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 moreAZTech, Integra Technologies, Andwill, and Wireclass Update V: Disconcerting Dysfunction – 4 Government Agencies Each Going Own Way Provide Lack of Closure to Victims
Posted onAfter the ICE press conference in October, it appeared that the US Government was winding down its investigation of AZTech, Integra, Andwill and Wireclass. It appeared that those associated with The Four companies would be getting resolution one way or another. That conclusion, it turns out, was premature. As you know, there are four US government agencies primarily involved in the administration and enforcement of US immigration laws. They are Immigration and Customs Enforcement (ICE), Customs and Border Protection (CBP), US Citizenship and Immigration Services (USCIS), and the Department of State through its local embassies and consulates. ICE are the immigration police; it also is responsible for the administration of the SEVIS and OPT programs. CBP includes the airport and port-of-entry inspectors who verify the admissibility of individuals to the United States. USCIS adjudicates immigration benefits, including H-1B petitions, I-765 employment authorization applications, changes/extensions of status, and green card applications….
Read moreThe Fat Lady, Stowaways, and Alien Smugglers
Posted on“It ain’t over till the fat lady sings…” The opera expression widely used in sports has taken on a whole new relevance in the immigration world. No longer are government agencies approving applications and deferring to previously-approved applications or adjudications. Rather, they are reopening past applications – from 3, 5, 10, 15, 20 years ago – searching for misrepresentations, inconsistencies, and loose ends to thwart applications for visas, changes to status, and adjustment of status. You are so close to getting that long-desired visa or green card, but the “fat lady” – in these cases, USCIS and the State Department consular posts – doesn’t want the “opera” to end. The boundaries are unlimited. Even relatively obscure provisions of immigration law, such as the “stowaway” provision, are being invoked more and more. A stowaway is someone who obtains transportation without consent and through concealment. Anyone who enters the US by a…
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