The Role of Culture in Visa Denials.

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I recently wrote a blog regarding the OPT scandal advising the victims that “surrender is not an option”, that they needed to be proactive in seeking to resolve the potential drastic consequences.  That thought came to mind again when a gentleman contacted me a few weeks ago about his wife’s visa problem.  She had been denied an immigrant visa and permanently barred from the United States under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act. The stakes for him could not be much higher: his wife may never be able to join him in the US unless an immigrant waiver would be approved.  Yet in talking to him and reviewing the case documents, it was not clear why she had been accused of making a willful, material misrepresentation.    I told him that the consular officer should be contacted and asked to provide a clarification about why this draconian decision had…

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A Visa Applicant’s Bill of Rights – What the Department of State and Your Local US Embassy/Consulate Often Do Not Want You to Know

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For 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…

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Innocent Visa Applicants Applying for Nonimmigrant and Immigrant Waivers

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With 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…

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Just Because They Say So, Doesn’t Make It True

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 I 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…

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Part 3: Hadi Deeb: Tsar-Consul of Uzbekistan – “You are not proficient in your 3rd and 4th languages? Sorry, you are denied.”

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The case of Mr. B is illustrative of the consular tyranny prevailing in Tashkent and how Mr. Deeb has apparently impacted Department of State decisionmakers in formulating visa policy. Mr. B. has a high school diploma and thereby satisfies the Diversity Visa education requirements.[1] He is of Tajik background and grew up in Uzbekistan, where he learned the Uzbek language.  Yet, when he attended his interview at the US Embassy in Tashkent, the consul tested not his knowledge of the Uzbek or Tajik languages, but his English- and Russian-language capabilities in violation of the State Department’s Foreign Affairs Manual: (b) A DV refusal must be based on evidence that the alien did not in fact obtain the required degree and not on your assessment of the alien’s knowledge level. You may not administer an exam, either oral or written, to test an applicant’s basic knowledge in order to determine whether…

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Hadi Deeb: Tsar-Consul of Uzbekistan

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They call him The Tsar.  And deservedly so. Who else can unilaterally, singlehandedly reinterpret Uzbek divorce law to deny numerous  Uzbek Diversity Visa applicants?  Who else can crush immigrant dreams using a variety of creative pretexts: disqualifying an applicant for failing to include a 3 day old baby (with no legal name) in a DV entry; a single woman for failing to include her nonexistent husband in her DV entry; a family for not including a second child in their entry, a child who was stillborn? Who else can have his staff ask a single woman applicant why she is not married or an infertile woman why she does not have more children? Who else can test an applicant’s knowledge of his third and fourth languages – i.e., not his native language and the language he learned in school – in black letter violation of the Department of State’s own…

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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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No Statute of Limitations on Visa Application Lies

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Let’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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Request for Reconsideration of Immigrant Visa Denials

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Many immigrant visa applicants are under the mistaken impression that they are not allowed to challenge a negative visa decision by a consular officer. In fact, every applicant for an immigrant visa has a right to submit a Request for Reconsideration of an immigrant visa denial. While technically this is not an appeal, a Request for Reconsideration does give the applicant the right to submit new evidence or arguments to challenge a visa refusal.   A consular officer must review such a formal Request; this is an obligation, one that the consular officer cannot shirk.  This obligation is set out in the Department of State’s own regulations, and an appeals court recently confirmed that this is the consular officer’s duty, punching a hole in the armor of the consular nonreviewability doctrine.  However, there is a time limit on the submission of the RFR: it must be submitted within one year of…

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