Ms. J had completed her final class before her Diversity visa interview, but had not received her high school diploma in time for the interview. The consular officer refused her for not having the equivalent of a high school education at the time of her interview. We pointed out that she had completed her high school education — that it was the education that satisfied the Lottery requirement, not the issuance of the diploma — and therefore satisfied the Lottery requirement at the time of her interview. Upon reconsideration, the consulate re-opened her case and issued to her an immigrant visa.
Complex Visa Cases: Inadmissibility, Waivers, Humanitarian Parole
A USCIS or consular officer may find an individual inadmissible to the US, or there may be a situation where there is no appropriate visa solution but humanitarian reasons warrant entry to the United States. Findings of ineligibility fall into a broad variety of classes, with the most prominent being findings of misrepresentation or fraud; criminal; alien smuggling; and visa overstays. The consequences of such findings may be severe.
In the case of misrepresentation, a person may be barred from the United States permanently for a material misrepresentation made in the visa application process — even if that process took place 5, 10, 15 or more years ago, even if that person received visas after the alleged misrepresentation. Overstaying authorized visits to the United States can mean the imposition of a 3 or 10 year bar, depending on the time of overstay. A criminal conviction or a consular accusation of alien smuggling can also lead to a permanent bar from the United States. Therefore, it is imperative to be honest, scrutinizing, and diligent throughout the visa application process and while in the United States.
If there are emergent situations and a person is unable to obtain a visa, then an application for humanitarian parole may be justified.
What is the first step in dealing with a finding of visa inadmissibility?
It is imperative to understand the reason for such a finding. Often, officers make such a finding, but do not illuminate or disclose the factual reason for the finding. It is necessary to approach that officer or his superior directly, or through a Freedom of Information Act request, to obtain the reason for the finding and any underlying documentation that supports or contradicts the finding. Once this is done, one may formulate a strategy for dealing with the finding.
What is then done?
- Challenge the finding. If you believe that there are legitimate grounds for challenging the findings of the officer, an appeal or request for reconsideration is submitted to that officer or his or her supervisor or to the appropriate administrative or judicial body. Officers make mistakes, may be inexperienced, and are subject to time constraints. Sometimes it is necessary to educate an officer.
For example, an officer found an applicant for an immigrant visa to have a serious medical problem which would entail possible expenditure by American taxpayers. In fact, the applicant’s medical problem was not serious, and only required periodic monitoring. Or an officer who originally made a finding of material misrepresentation and thus permanently barred the individual from the US re-examined and nullified his decision upon presentation of exculpatory evidence. Or an officer whose finding that an individual was convicted of a crime of moral turpitude had that decision overturned by Washington upon the presentation of a legal memorandum calling into question that interpretation. Or a consul who accused an individual of alien smuggling rescinded his decision after new information was presented. The Case Studies section of this website chronicles many of our successful challenges to findings of inadmissibility.
It should also be kept in mind that questionable “poison pen letters”, “guilt by association” accusations or “secret evidence” often times serve as the basis for these findings.
- Waivers. If the finding is accurate, or the challenge to the finding is not upheld, immigrant and nonimmigrant visa waivers are available. The standards for the granting of a waiver for a non-immigrant visa are relatively liberal. The consul considers
- the risk of harm to society if the individual is admitted;
- the seriousness and recency of his or her violations;
- the reason that the applicant is seeking admission;
- Whether the person has been rehabilitated.
In addition, for visitors and student visa applicants, it is necessary to show the non-immigrant intent of the applicant and planned compliance with the visa.
The criteria for granting most immigrant visa waivers are much more limited. Immigrant waivers may be granted to the spouse, son, or daughter, and in some cases, to the parent, of a US citizen or permanent resident for certain ineligibilities if extreme hardship to the interested US person can be proven. This is a difficult standard to satisfy. If the person has been convicted of a crime of moral turpitude, then an immigrant waiver can be granted if at least 15 years have elapsed since the time of the incident. If the person has been accused of alien smuggling and the smuggling related to a parent, spouse, or child, then an immigrant waiver is available for humanitarian reasons, to ensure family unity, or if it is in the public interest.
- Humanitarian Parole. This may be an appropriate option if there is
- a reason why a person is unable to obtain a visa;
- there are medically emergent or humanitarian circumstances which justify permitting the individual to enter the U. S.