Posts tagged “misrepresentation”

So why don’t consular officers wish to give copies of these Voluntary Statements to visa applicants? Maybe because they are not so “voluntary” after all. As explained to me by several visa applicants from India, they do not voluntarily provide these statements. Rather, they are bullied, coerced, and compelled to write the statements. Worse, consular staff dictate the text of the statement under threat of permanent bar from the United States. Even worse, the statements often contain materially erroneous information. One applicant said that US consular staff “threatened me that they will [b]an me from going back to USA if I don’t agree with their version of the story." Another stated: “At the end when she asked me to write down the statement, she especially [sic] dictated the whole thing to me." Not only had this applicant been advised to indicate wrong information in her statement, but the officer attempted…

The first indicator of the questionable nature of these Voluntary Statements are the lengths to which consular officers go to obstruct their disclosure to the visa applicant. As a general rule and enshrined by Section 222(f) of the Immigration and Nationality Act, visa records are considered confidential and not subject to disclosure. However, there is an exception for documentation submitted by the applicant; such documents are subject to disclosure. In the case of the Voluntary Statements in India, the consular officer does not give a copy to the applicant at the conclusion of the interview. This, notwithstanding the draconian visa consequences and criminal liability that the applicant has been exposed to by signing the Voluntary Statement. The consular officer’s “Bible”, the Foreign Affairs Manual (FAM), makes it abundantly clear that these statements are releasable to the applicant: 2. d. (U) Documents Releasable to Applicant: The documents listed below are deemed…

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 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…

The story was not unusual. Ekaterina arrived in the US on a B-1 visa. She became acquainted with an incompetent lawyer, one who did not charge for an initial consultation. The lawyer, more interested in making a sale because he could not live on free consultations, told her that she could qualify for L-1 status. They then signed a legal services agreement and Ekaterina made a substantial payment. The lawyer and Ekaterina began preparing to file the L-1 petition. The lawyer opened an American company; Ekaterina opened a corporate bank account and placed funds on the account; and on behalf of the company, Ekaterina leased an office, paying rent for three months in advance. After this, the lawyer filed the L-1 petition for her to change her status. After USCIS sent a Request for Evidence, the lawyer prepared a response. Unfortunately for Ekaterina, the response was inadequate, and USCIS denied…

Consular officers permanently bar more visa applicants every year for “alien smuggling” than any other provision of the Immigration and Nationality Act except misrepresentation. In 2012 alone, consular officers invoked the alien smuggling provision of the INA, Section 212(a)(6)(E), more than 6,000 times, an increase of more than 20% from the year before. What are the standards for a finding of alien smuggling, and what categories of people have been subject to this provision of the INA? A consular officer can make an alien smuggling finding if he or she decides that a visa applicant has, at any time, knowingly “encouraged, induced, assisted, abetted or aided…” another alien “to enter or try to enter the United States” in violation of law. The Immigration Act of 1990 abolished the “for gain” requirement, so a consular officer does not need to find that the applicant had a profit motive or received money…

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….