Mr. B was an amateur golfer who spent substantial time in the US. When he applied to receive a new visa, he was denied under Section 214(b) because he was “spending too much time” in the US and it was unclear how he was supporting himself. We prepared documentation evidencing Mr. B’s finances, and reminded the consulate that the applied-for visa status permitted prolonged stays in the US for an athlete such as Mr. B. He received a new visa.
When a person is granted asylee status in the United States, he or she will want to bring a spouse and minor children to the United States. There is a legal mechanism to do so, called the I-730 follow-to-join process. Within two years of being granted asylee status, the asylee submits an I-730 petition to USCIS for each eligible family member. After approval of the I-730 petition, the family members go through an interview at the US consular post abroad. Upon approval, the consul issues a “boarding foil”, which gives the holder the ability to board a plane and enter the United States. One year after arrival, he or she has the ability to adjust status to become a permanent resident.
What if you have been refused a boarding foil?
The usual admissibility criteria do not apply to applicants for a boarding foil. However, the consul can properly refuse an applicant if there are suspicions about the authenticity of a marital relationship; the biological connection of a child with the asylee in the United States; or that a child does not qualify because he or she has aged out. To resolve suspicions about the genuineness of a marital relationship, the consul may demand evidence of the relationship between the spouses — joint photos, property, past cohabitation together. These questions and suspicions are more likely to arise if there are no children; if the couple have not been married long; and/or there are language, cultural, religious, age or ethnicity differences. With a view towards finding discrepancies and inconsistencies, the consul may review previous visa applications made by the asylee and the spouse applying for the boarding foil. If the consul suspects that the child is not the asylee’s and does not qualify as a stepchild, the consul may demand that the asylee and child take a DNA test. If there are questions about the actual age of the child and whether the child aged out, the consul may request evidence or testing to more definitively determine the age of the child.
If the consul denies the boarding foil on other grounds — such as a previous finding of a misrepresentation under Section 212(a)(6)(C)(i) of the Immigration and Nationality Act — then that decision should be challenged. For example, perhaps the spouse had applied for a US visa five years ago and presented a fraudulent employer letter, and the consul rendered a Section 212(a)(6)(C)(i) decision at that time. This past visa problem should not be raised by the consul when applying for an I-730 dependent boarding foil. It will only become relevant at the adjustment of stage — after arrival to the United States — and will require an I-602 Waiver. Remember that consuls deny visas on various misrepresentation, alien smuggling, unlawful presence, and criminal grounds all of the time, and may not be trained in asylee law. So, seeing a “hit” in the system or coming across new, derogatory information, the consul may reflexively deny a dependent applying for a boarding foil.
Finally, it must be kept in mind that the I-730 process is lengthy. The last thing that the asylee in the United States wants is a further delay during the consular stage of the process, a delay that can add weeks, months, or even years to reunifying with family. The consequences for family members stranded abroad may be severe. They may be persecuted by their home government because of their familial relationship with the asylee in the United States. They may have their passports confiscated by the local authorities. Any delays can be lifechanging. To avoid critical delays and any of the situations described above, it is best to consult before the consular interview with a qualified lawyer. Please feel free to contact us — whatever stage you are in of the I-730 process.