Posts tagged “Visa Refusal”

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 visa problems one should always try to resolve the issue with the embassy, consulate or State Department first. Visa applicants do indeed have rights. But once those rights or your patience have been exhausted, one may consider the possibility of a lawsuit.

The problem is that as a general rule, visa denials are not subject to judicial review under the doctrine of consular nonreviewability. This was recently reaffirmed by the Supreme Court in Muñoz v. Department of State. The onslaught of anti-immigrant actions and rhetoric by the Trump Administration can also be intimidating to visa applicants. But there are exceptions to the rule barring judicial review of visa cases and visa denials. Sometimes the mere filing of the lawsuit can impact the case. While this area of the law is fluid and unpredictable, courts have recognized some exceptions, including:

Fair 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…

On average, more than a million visa applicants are rejected every year under Section 214(b) of the Immigration and Nationality Act. Nonimmigrant visa applicants, excluding H-1B and L-1 visa holders, bear the responsibility of demonstrating their non-immigrant intent. Under 214(b), applicants must not only qualify for the visa but also agree to adhere to its terms upon entering the US. For B visa applicants, proof of a foreign residence and temporary visit intentions for business or pleasure is necessary. F visa applicants additionally need to demonstrate both qualifications for studies and the intent to return home after completion. Employment visa seekers must exhibit qualifications relevant to their visa type. Notably, there’s no time restriction on invoking 214(b); for instance, prolonged previous stays in the US leading to suspected employment violations more than 10 years ago can prompt its application. Consular officers commonly resort to visa revocation. This affects thousands annually…

Below 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…

People thought that with the passing of the Trump Administration, Department of State visa policies would become more tempered and that enforcement would moderate from the Trump-era extremes. People, unfortunately, could not have been more wrong. Statutes of limitations exist for good reason: due process, basic fairness, evidence that becomes stale over the years, the disappearance or death of witnesses, fading memories, and to prevent inconsistent decisions. But as discussed in a previous blog, there is no statute of limitations in visa law. And so consular officers are free to go back and review previous visa applications and time spent in the United States to determine whether a misrepresentation (Section 212(a)(6)(C)(i)) had been made at the time of the visa application or at the time of entry to the United States, or whether the individual had engaged in alien smuggling (Section 212(a)(6)(E)). Critically, this holds true whether a consular officer…

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…

Today we are publishing a new article about K-1 visas. In the article we discuss the 16 primary reasons a consul finds a K-1 case suspicious. The article also highlights the 4 steps the American citizen and fiancée can take to prevent denials. Finally, the article discusses in detail how to deal with a 221(g) refusal, an accusation of a sham relationship, and what to do if the petition is sent back to USCIS. The most important takeaway from the article: just because there is a real, sincere relationship does not mean that the K-1 visa will be issued. A lack of evidence, a weak interview, or a skeptical consul who believes he knows the fiancee’s “true intentions” better than the US petitioner can sabotage a K-1 case. Contact us to discuss your case.

Today we are publishing a new article on this site about student visas. In the article, we catalog 40 reasons why an F-1 visa can be denied. Straightforward 214(b) rejections, complicated 212(a)(6)(C)(i) permanent bans, and protracted 221(g) delays are some of the most common problems arising from an F-1 application. What would appear to be a straightforward, simple visa process can turn into a veritable minefield for the unsuspecting. And while some of the denial reasons may be beyond the control of the applicant, what is obvious is that some students are unprepared for the visa application process — with many receiving avoidable refusals. Contact us to discuss your situation.

At least a couple of times a month I get a similar, frantic phone call. “I just applied for a new visa, but it was denied. The consul didn’t like the fact that I spent 5 months in the US on my last trip. I told him that the airport inspector allowed me to stay for 6 months. I didn’t do anything wrong!” Or “My visa has been revoked. But I didn’t do anything wrong. When I arrived in the US, they gave me 6 months to stay, so I did. I didn’t violate any laws, so why are they revoking my visa?!?” The revocation is done by either the consul or the airport inspector the next time the visa holder arrives in the US. There are many “red flags” here considered by the consul or airport inspector: The visa holder must remember that when he applies for a visa…

On February 22, we published Part 1 of this FAQ. Since then, the Department of State, including all embassies and consular posts outside the United States, implemented the new rules. What practical changes have gone into effect? It is still too early to know exactly what each embassy and consulate will require from immigrant visa applicants. However, in the few weeks since the rules went into effect, it appears that embassies and consulates processing immigrant visas are requiring 1) the completion and submission of the Form DS-5540 and 2) asset and income documents confirming the information in the Form. The new Form DS-5540 asks about the immigrant visa applicant’s 1) age: 2) health; 3) household size; 4) assets; 5) current and future income; 6) liabilities; 7) past usage of public benefits in the US, if any; 8) education; and 9) trade/vocational skills. Documents confirming assets, such as real estate appraisals…

We have just posted an in-depth article on this site about the various types of Diversity Lottery refusals — and how to prevent or challenge them. At least 30,000 individuals go through Diversity Visa interviews every year — and don’t receive the visas. Putting aside the approximately $10,000,000 in processing fees pocketed by the Department of State from unsuccessful applicants every year and millions more spent by these applicants in medical exams, travel, etc…, the article spotlights the veritable minefield of potential reasons for refusal. One would think that the Lottery aspect of the Diversity Visa Program only applies to the selection — competing to be one of the less than 1% selected. But what many winners find is that even after selection the “Lottery” elements of luck and chance continue right up until September 30: until the visa is issued or denied or the application is not acted upon…

Visa applicants whose applications were pending under Section 221(g) received a shock yesterday morning when they went to check the status of their cases on the Department of State’s website. Suddenly, the status of their cases changed to “Refused” from “Administrative Processing”. Imagine the trauma inflicted on applicants who have been waiting months or even years to see that suddenly, their applications had been refused: their chance to immigrate, visit, study, or work in the US was denied. Only after reading the remaining text on the Status page does it become clear that the applications were not definitively denied, that they remain under adjudication, i.e, no final decision has been made. The small explanatory note under the bold heading of Refused states: If you were informed by the consular officer that your case was refused for administrative processing, your case will remain refused while undergoing such processing. You will receive…

What are the new Public Charge Rules? Section 212(a)(4) of the Immigration and Nationality Act makes inadmissible immigrants who are “likely at any time to become a public charge”. Practically speaking, in the past, if the sponsor in the United States had sufficient income (more than the poverty level) or assets, then the immigrant successfully received the visa or adjusted status. Now, the focus will be on the immigrant him or herself. The examiner will consider the personal circumstances of the immigrant: is it likely that he or she will become a public charge at any time in the future? The circumstances to be reviewed include age, health, family size, financial resources, education and skills, and sponsor. In short, this rule will adversely impact the elderly or soon-to-be-retired; those with medical conditions; the less educated; those with large families; those with few job prospects in the United States; those who…

One usually does not associate the US Government Accountability Office with “interesting” reports, but last year’s report on E-2 visas was eye-opening. Of particular note are the reasons why E-2 applicants are denied. While the report is limited to examining certain countries, it provides critical insight into the thinking of consular officers and obstacles to obtaining E-2 visas. As a reminder E-2 visas are limited to nationals of countries with whom the United States has commerce and navigation treaties. The full list of countries can be found on the Department of State’s website, with 80% of all E-2 applicants originating from 9 countries: Japan, Germany, UK, France, Canada, Mexico, South Korea, Italy, and Spain. The majority of E-2 visa applicants are related to large investments (>$10 million) — think of managers and essential employees going from Japan to work in a large car plant in the United States. However, the…

Statutes of limitation apply in criminal law. They were put into place to prevent the prosecution of an alleged wrongdoing after a certain number of years has gone by (usually 5–7 years). There are many reasons for this: evidence goes stale; witnesses are unavailable; memories fade; to allow for certainty and repose of the parties; and to prevent inconsistent decisions. But there is no statute of limitations in visa/immigration law. With some exceptions, until recently, this has not been a significant problem. But along with the anti-immigrant politics of the Trump Administration has come a new visa phenomenon: consular officers are now using the lack of a statute of limitations to “exhume” perceived past visa transgressions. They are re-opening and reconsidering suspected visa violations — with no limitation of time or past consular “exoneration”. Consular officers are now revisiting such transgressions from 5, 10, or even 15 years ago -…

The Trump Administration announced new rules regarding birth tourism, which took effect on January 24, 2020. Already, misinformation has cropped up. So to provide some clarity, the below FAQ is provided: Whom do the new rules affect? They only affect applicants for B visitor visas; they do not impact current holders of visas nor citizens of Visa Waiver Program countries who can enter the US without a visa. May current holders of visas and those who hold passports from Visa Waiver Program countries enter the United States to give birth? The Department of Homeland Security, which include Customs and Border Protection inspectors at ports-of-entry, has not announced any new policies or reinterpretations of allowing entry for those who enter to give birth. In the past inspectors permitted women to enter the US to give birth as long as they could show the ability to cover the cost of birth. However,…

Visa refusals continue to skyrocket under the Trump Administration — and it doesn’t seem to matter whether the applicants are from countries considered “friends” or “foes” of the United States. While the refusal rates for some countries, such as Vietnam, Philippines and Pakistan, have remained relatively stable, other countries have seen a significant jump. Brazil, Nigeria, Russia, Ukraine, Uzbekistan and China have each seen increases of more than 25% over the past two years, with India and Mexico not far behind. Below are the visa refusal statistics for B visas for fiscal years 2017–2019. Country % of B Visa Applicants Refused in FY-2017% of B Visa Applicants Refused in FY-2018% of B Visa Applicants Refused in FY-2019% Increase from FY-2017 to FY-2019 Brazil 12.34 12.73 18.48 49.75 China 14.57 17 18.22 25.05 India 23.29 26.07 27.75 19.14 Mexico 22.5 24.93 26.66 18.48 Nigeria 44.95 57.47 67.20 49.49…

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…

Interpol conjures up images of a worldwide police tracking down “bad guys” on the run from home country authorities. But Interpol is not a law enforcement agency: it does not issue warrants and does not have the authority to make arrests. While the overwhelming majority of Interpol’s information-sharing capacity is dedicated to tracking down true “bad guys”, many home country governments abuse it. They manipulate Interpol into doing their dirty work, making bogus allegations to locate dissidents, political activists, and whistleblowers. As a result, Interpol issues Red Notices based on bare allegations made by a government — for example, fraud — not evidence, with a view to extraditing that person back to that country. Yet consular, Customs and Border Protection, and Immigration and Customs Enforcement officials erroneously use the Red Notice as shorthand to deny visas, detain individuals at the border, and arrest them inside the United States. It is…