Posts tagged “J-1 visa”

Listening to the bluster of the Trump Administration, one gets the impression that – legally – any person can be denied a visa JUST BECAUSE: just because their personal views are abhorrent to this Administration; just because they express those views publicly; just because they were involved in some traffic stop 15 years ago. But here’s the thing – that’s not true.

The Trump Administration may not like it, but it is subject to the law. The courts in the US have repeatedly handed the Administration loss after loss when it has tried to deport individuals on free speech and other questionable grounds.  But visa applicants outside the US do not have the US courts as a legal backstop: courts have bound themselves by the doctrine of consular non-reviewability – disempowering themselves from the review of visa denials. This means that no matter how ridiculous a visa refusal may be, courts generally will not get involved.

For years, applicants seeking nonimmigrant waivers under section 212(d)(3)(A) of the Immigration and Nationality Act could rely on one reassuring truth: once a waiver was granted, renewing it in the future was usually a formality. As long as the applicant abided by the terms of the visa—no unlawful work, no overstaying, no protracted stays, no criminal violations— the U.S. Department of State (DOS) would routinely recommend approval of subsequent waivers without revisiting the entire case from scratch.

That changed in February.

In a quiet but significant policy shift, the Department of State announced that it will no longer defer to prior nonimmigrant waiver approvals when evaluating new applications after the original waiver expires (typically after five years). In plain terms: even if you were approved before and abided by the terms and conditions of the visa, your next waiver request will be treated as a brand-new application. There is no longer any presumption of consistency or continuity.