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Archive for the ‘I-601 Waiver’ Category
8th June 2011
USCIS Memo On Expedited Adjudication of I-601 Waiver Applications
Posted by : admin
It recently came to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) has issued memorandum regarding the process of expediting the adjudication of I-601 waivers. To provide further insight it may be best to quote directly from the official website of USCIS, USCIS.gov:
Purpose
This Policy Memorandum (PM) provides guidelines on how U.S. Citizenship and Immigration Services (USCIS) processes requests to expedite the adjudication of Forms I-601 filed by individuals outside the United States. These guidelines will be included in the AFM Chapter 41.7 and in the revised version of International Operations Division Field Guidance for Form I-601 adjudications.
Scope
Unless specifically exempted herein, this memorandum applies to and is binding on all USCIS employees adjudicating Forms I-601 filed by individuals outside the United States.
Authority
8 CFR 212.7 governs USCIS adjudication of Form I-601.
Background
It has been USCIS’s longstanding policy to accept requests to expedite processing of petitions or applications where the applicant or the petitioner demonstrates reasons that merit expedited processing of a petition or application. Consistent with this policy, an applicant may request that the adjudication of a Form I-601 be expedited. Requests to expedite in the Form I-601 adjudication context present unique challenges. Almost all Form I-601 applicants outside the United States have an interest in expeditious processing given that most are required to establish extreme hardship to a qualifying family member in order for USCIS to consider whether to exercise its discretion to waive the bar to an applicant’s entry into the United States. However, some applicants may be experiencing extraordinary circumstances that present the kind of compelling and urgent, time-sensitive reasons that merit expedited processing of a Form I-601. This memorandum provides guidelines on responding to requests to expedite Forms I-601 filed by applicants overseas. Policy Subject to case management requirements and resource constraints, USCIS managers overseas may, in extraordinary circumstances, exercise discretion on a case-by-case basis to approve a request to expedite adjudication of a Form I-601.1 The strong desire to immigrate to the United States as soon as possible is not by itself “extraordinary.” The types of extraordinary circumstances that may, generally, merit expedited processing are those in which there are time-sensitive and compelling situations that necessitate the applicant’s presence in the United States sooner than would be possible if the application were processed under normal processing times…
For those who are unfamiliar with matters pertaining to United States Immigration it should be noted that the I-601 waiver is often utilized as a remedy for those who have been found inadmissible to the United States or ineligible to receive a US visa (such as a K-1 visa [fiance visa], CR-1 visa, or IR-1 visa) during Consular Processing at a US Embassy or US Consulate abroad.
The I-601 waiver is sometimes confused with the I-212 waiver (also referred to as an application for advance permission to reenter the United States). However, the I-601 waiver and the I-212 waiver are two different application categories which are somewhat similar, but not exactly alike.
For related information please see: Legal.
29th May 2011
The EB-2 Visa: Eligibility And Consular Processing Discussed
Posted by : admin
In a previous posting on this blog the eligibility criteria for the EB-1 visa were briefly discussed. In that same vein, this blogger felt further elaboration on other Employment Based visa categories was warranted to provide insight to readers about issues associated with other employment based preference categories. The United States Citizenship and Immigration Service‘s (USCIS) official website posted an enlightening chart to provide an overall glimpse of the eligibility criteria which this blogger felt could be of interest to readers. To quote directly from the official website of the USCIS, USCIS.gov:
| Sub-Categories | Description | Evidence |
| Advanced Degree | The job you apply for must require an advanced degree and you must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field). | Documentation, such as an official academic record showing that you have a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that you have a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that you have at least 5 years of progressive post-baccalaureate work experience in the specialty.
|
| Exceptional Ability | You must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” | You must meet at least three of the criteria below.* |
| National Interest Waiver | Aliens seeking a national interest waiver are requesting that the Labor Certification be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker. | You must meet at least three of the criteria below* and demonstrate that it is in the national interest that you work permanently in the United States. |
Readers are encouraged to conduct their own research into these issues as the chart above is merely presented to provide something of an overview regarding eligibility. The chart above should not be viewed as an exhaustive analysis of the issues at play in a EB-2 petition.
It should be noted that second preference Employment Based petitions are carefully scrutinized as issuance of such visas is intended for those foreign professionals holding an advanced degree or an alien national of “exceptional ability”. Therefore prospective visa seekers are encouraged to note the rather high standards by which those seeking this visa category will be compared during the adjudication process.
Those seeking the visa categorized as an EB-2 are well advised to remember that adjudication of a visa petition at the Department of Homeland Security‘s USCIS may be only one phase of the overall visa process as those residing outside of the United States may be required to undergo Consular Processing at a US Embassy or US Consulate abroad.
For readers who have happened upon this blog in the past, the mention of the “national interest waiver” may bring to mind the I-601 waiver or the I-212 waiver which could be argued to be somewhat similar. Another type of waiver that could be construed as similar to the “national interest waiver” is the waiver sometimes granted by USCIS to permit the filing of multiple petitions for a K1 visa within a relatively short period of time notwithstanding the provisions of the International Marriage Broker Regulation Act (IMBRA).
Frequent readers may recall that the EB-5 visa is also classified as an Employment Based Visa although the criteria for EB-5 visa issuance is different from those of the EB-2 most notably as the EB-5 visa petitioner must demonstrate that a substantial investment has been made in the United States in order to hope to attain eligibility for EB-5 visa status.
The United States visa process can be overwhelming at times and for this reason many opt to retain the assistance of counsel. That stated, when retaining the services of anyone purporting to be qualified to provide advice and/or assistance regarding immigration matters it may be prudent to ascertain credentials as, pursuant to relevant US law, only a licensed American attorney is permitted to take in client fees while engaged in the practice of United States immigration law.
For related information please see: Legal.
29th April 2011
It recently came to this blogger’s attention that the discretionary powers accorded to Consular Officers at United States Missions abroad with regard to visa issuance are to be expanded to provide further latitude to Consular Officers with regard to the revocation of US visas. To quote directly from Justia.com:
This rule changes Department regulations to broaden the authority of a consular officer to revoke a visa at any time subsequent to issuance of the visa, in his or her discretion. These changes to the Department’s revocation regulations expand consular officer visa revocation authority to the full extent allowed by statute. Additionally, this rule change allows consular officers and designated officials within the Department to revoke a visa provisionally while considering a final visa revocation.
Clearly, this rule would expand the authority currently granted to Consular Officers in adjudicating American visa matters. For those who are unfamiliar with this topic it should be noted that Consular Officers currently maintain virtually un-reviewable discretion in matters pertaining to US visa application adjudication. This discretion occurs pursuant to a doctrine referred to as Consular Non-Reviewability (or colloquially referred to as Consular Absolutism). Pursuant to the philosophy underlying this doctrine Courts in the United States are unlikely to review the decisions of a Consular Officer at a US Embassy or US Consulate abroad unless the Consular Officer’s decision in the matter appears “facially illegitimate” to the Court of competent jurisdiction.
Bearing this in mind the announcement went on to point out the reasoning behind the recent decision to make this rule change:
On occasion, after a visa has been issued, the Department or a consular officer may determine that a visa should be revoked when information reveals that the applicant was originally or has since become ineligible or may be ineligible to possess a U.S. visa. Section 221(i) of the Immigration and Nationality Act (8 U.S.C. 1201(i)) (INA) authorizes the Secretary and consular officers to revoke a visa in their discretion. Current regulations limit the circumstances in which consular officers may revoke visas. In light of security concerns, this amendment grants additional authority to consular officers to revoke visas, consistent with the statutory provisions of the INA. Although this rule eliminates the provisions that permit reconsideration of a revocation, it also allows for the provisional revocation of a visa when there is a need for further consideration of information that might lead to a final revocation. In cases where the person subject to a provisional revocation is found to be eligible for the visa, the visa will be reinstated with no need for reapplication. However, with the exception of provisional revocations, an applicant whose visa has been revoked must apply for another visa, at which time his or her eligibility for the visa will be adjudicated.
In this blogger’s opinion, this rule change could have significant ramifications for prospective visa applicants. That stated, it remains to be seen what the practical implications of this rule change will be. The administration of this web log strongly encourages readers to click on the above hyperlinks to learn more about this topic on Justia.com.
It should be noted that within the text of this memo it was pointed out that this rule is being promulgated pursuant to the Administrative Procedure Act. To quote one final time from the aforementioned document:
This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553 (a) (1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.
Those who have read this blog in the past may recall that the United States Department of State maintains a mandate to conduct the foreign affairs of the United States and one of the duties that is entailed within this mandate is the duty to adjudicate applications for a US visa. This can include applications for visas such as the B-2 visa (for those wishing to engage in recreational travel in the United States), the K-1 visa (a US fiance visa for the foreign fiance of a US Citizen), the CR-1 visa or IR-1 visa (for the spouse of an American Citizen or Lawful Permanent Resident), or, in increasingly rare instances, a K-3 visa (which is a non-immigrant spouse visa for the husband or wife of an American Citizen). It is even posited that this new discretion could have an effect upon adjudication of L-1 visa and EB-5 visa applications, as well as the possible aftermath thereof. In any case, increased Consular discretion is likely to have an impact upon visa applications across the categorical spectrum of American travel documents.
For related information please see: K-1 Visa Thailand or K-1 Visa Cambodia.
For information related to waivers of grounds of inadmissibility (ineligibility) please see: I-601 waiver or I-212 waiver.
17th March 2011
How Would a Government Shutdown Impact The U.S. Immigration Process?
Posted by : admin
In recent months the likelihood of a government shutdown seems to be increasing as the politicians in the United States capital seem to be more polarized than ever. Meanwhile, some are arguing in favor of a shutdown (even going so far as to advocate for an extended period of governmental closure). At the same time, others argue against a shutdown. Regardless of one’s opinion either way, it seems possible that a shutdown may occur, and in the event that a shutdown does come to pass, those processing an immigration matter may be prudent to research the impact that a shutdown might have upon the immigration process.
The following was quoted directly from a recent posting on the website CaldwellTeaParty.org:
The next month will be marked by intense negotiations on the debt ceiling, and the GOP will then have to decide on a shutdown or a bipartisan budget deal with Kent Conrad and his allies.
The above citation most clearly and concisely sums up the current state of affairs regarding the possibility of a government shutdown. The administration encourages readers to click on the above links as this issue is quite complex. Those interested in understanding the ramifications of a government shutdown may be best informed by this administration quoting directly from Wikipedia:
A government shutdown occurs when a government discontinues providing services that are not considered “essential.” Typically, services that continue in spite of a shutdown include police, fire fighting, armed forces, utilities, air traffic management and corrections.
A shutdown can occur when a legislative body (including the legislative power of veto by the executive) cannot agree on a budget financing its government programs for a pending fiscal year. In the absence of appropriated funds, the government discontinues providing non-essential services at the beginning of the affected fiscal year. Government employees who provide essential services, often referred to as “essential employees”, are required to continue working.
Although the above citation clears up the issue of what constitutes a government shutdown, the question likely on the mind of those with foreign loved ones processing through the immigration system is: how would a government shutdown impact the processing of my loved one’s visa? The answer: a Federal government shutdown would result in a sort of “freeze” of most of the immigration apparatus as this falls within the bailiwick of the Federal government. Therefore, a Federal shutdown would likely result in little, if any, action being taken with regard to adjudication of visa applications at each US Embassy or US Consulate abroad. For further insight it may be best to quote directly from a recent posting on the Diplopundit blog:
In 1995, all visa applications are walk-in. Today, a good number of consular sections have online appointment systems. Which means, visa appointments will have to be canceled and rescheduled if there is a shutdown. Consular sections may only be open for life and death emergencies. That means lost passport applications, reports of births abroad, adoption cases, notarials, etc. will all have to wait until the Federal government reopens.
The administration of this blog highly encourages readers to click on the above hyperlinks as the quotation above was found in a very interesting and detailed posting dealing with these issues.
Clearly, the ramifications of a government shutdown will be severe for those awaiting processing of a visa application. Meanwhile, it would appear as though USCIS will continue to operate as normal despite a possible shutdown. To quote directly from the website Martindale.com:
USCIS has announced that, because it is funded by filing fees, it should remain open during a government shutdown. The operations of the four Service Centers should remain largely unaffected. Local USCIS District Offices should also remain open.
Again, this blogger highly encourages readers to click on the hyperlinks above to learn more.
Notice that the above quotation uses the word should. This blogger only points this out as it goes to show how difficult it is to foretell what the impact of a government shutdown would be on the United States Citizenship and Immigration Service (USCIS) since that agency has attempted to remain self-funded through application fees. That said, the overall issue of government shutdown has yet to fully manifest itself, but that should not be construed to mean that it will not. In fact, those seeking American visas are likely to see an overall slowdown in the overall processing of cases as a result of a shutdown (should one actually occur, which remains to be seen).
16th February 2011
I-601 Waivers: Why Do-It-Yourself (DIY) May Not Be The Best Approach
Posted by : admin
It has recently come to this blogger’s attention through anecdotal evidence that there may have been a relatively significant increase in the number of I-601 waiver petitions filed by American Citizens in both the Kingdom of Thailand as well as the greater area that comprises the Association of Southeast Asian Nations (ASEAN). Apparently, the majority of these cases are being handled pro se (without attorney representation). It would appear that these pro se filings are being subjected to Requests For Evidence (RFE) which can be time consuming. Furthermore, there are some who also speculate that such petitions could see a higher denial rate.
Those who read this blog may have taken notice of the fact that this blogger takes the practice of United States Immigration law seriously. That said, there is nothing inherently wrong with American Citizens unilaterally petitioning their government for United States Immigration benefits pro se. This blogger has no problem with those who wish to seek immigration benefits without the assistance of counsel, but those pondering this course of action should be aware of the risks. First, the assistance of an American attorney in the US Immigration process can prove highly beneficial as such a professional can provide insight into the dynamics of immigration law as well as the regulations which are used to enforce that law.
Immigration law could be likened to dermatological medicine insofar as the routine cases that arise in an immigration context are sometimes easily taken care of by the petitioner or beneficiary themselves much the same way that a case of acne could be alleviated without the need to visit a dermatologist. Meanwhile, some issues which arise in immigration law can be extremely complicated and therefore such matters may require the assistance of one with a great deal of experience in matters pertaining to American immigration law. This state of affairs brings to mind a hypothetical situation involving dermatologists who specialize in skin cancers and various other skin maladies which are not commonly known to laymen. To take this hypothetical further, a patient afflicted with skin cancer is usually unable to treat themselves. To use this hypothetical as an analogy in an immigration context: those seeking an I-601 waiver are in a situation, similar to the skin cancer patient mentioned above, which may require professional assistance as failure to retain an attorney could increase the chances that an I-601 waiver (or for that matter an I-212 waiver) will be ultimately denied.
The standard of proof in an I-601 waiver is “extreme hardship” and this standard is not easily overcome. The United States Citizenship and Immigration Service (USCIS) has noted that “extreme hardship” does not mean “mere separation,” of the couple, but is, in fact, something more substantial. American Immigration lawyers expend a great deal of time and effort to see that I-601 waiver petitions are well founded. As a result, such petitions may be at a lower risk of being denied. Bearing this in mind, no attorney, or anyone else for that matter, can foresee what the outcome of a waiver petition will be. Those reading this posting should not misconstrue the author’s message by inferring that retaining an attorney will result in a guaranteed outcome as this is simply not the case. Should an I-601 waiver petition be denied, then it may be possible to have the case reconsidered in a Motion to Reopen or through an appeal to the Board of Immigration Appeals (BIA). Under such circumstances, the case will be adjudicated based upon an “abuse of discretion” standard which is not easily overcome. Therefore, submitting a well founded I-601 waiver petition the first time can be imperative for those wishing to have a legal grounds of inadmissibility waived.
As always, those seeking representation or counsel in matters related to American immigration should check the credentials of anyone in Southeast Asia claiming expertise in such matters. Only an attorney licensed to practice law in the United States is entitled charge fees to represent clients before the Department of Homeland Security, USCIS, or American Missions abroad.
For related information about this issue please see: US Visa Denial.
16th December 2010
This blogger recently cam across an interesting report from the Department of Homeland Security. As discussed in previous postings on this blog, the Southwestern border of the USA has been the scene of increasing efforts by American State, Federal, and local authorities to stem the flow of undocumented immigrants to the USA. To quote directly from the report:
Department of Homeland Security (DHS) Secretary Janet Napolitano today held a quarterly conference call with sheriffs and police chiefs from 30 jurisdictions along the Southwest border to discuss the Department’s ongoing support for state and local law enforcement in their efforts to keep their communities safe from violence and other threats.
It would appear the the Department of Homeland Security is working more closely with local authorities in order to increase security along the United States-Mexican border. The aforementioned report went on to further note:
Since January 2009, DHS has committed unprecedented resources along the Southwest border. The Border Patrol is better staffed today than at any time in its 86-year history, having doubled the number of agents from approximately 10,000 in 2004 to more than 20,500 today. In addition, Immigration and Customs Enforcement (ICE) has doubled the number of personnel assigned to Border Enforcement Security Task Forces; increased the number of intelligence analysts working along the U.S.-Mexico border; quintupled deployments of Border Liaison Officers; and begun screening 100 percent of southbound rail shipments for illegal weapons, drugs, and cash—for the first time ever.
Secretary Napolitano also highlighted critical programs that assist state and local law enforcement in making their communities safer. In July, DHS announced more than $47 million in fiscal year 2010 Operation Stonegarden grants for Southwest border states. Based on risk, cross-border traffic and border-related threat intelligence, 82 percent of 2009 and 2010 Operation Stonegarden funds went to Southwest border states—up from 59 percent in 2008.
DHS has also expanded the Secure Communities initiative—which uses biometric information and services to identify and remove criminal aliens in state prisons and local jails—from 14 jurisdictions in 2008 to more than 800 today, including all jurisdictions along the Southwest border.
The Department of Homeland Security’s role has increased dramatically along the Southern border of the USA. In a previous blog post this author noted that the Department of Homeland Security’s United States Customs and Border Protection Service (USCBP) has been using sophisticated technology such as iris scanners in an effort to bio-metrically monitor travelers crossing the border between the USA and Mexico. Pursuant to legislation passed in the 1990s Customs and Border Protection has the authority to place foreign individuals into expedited removal proceedings which can result in a bar to admission for the foreign national for 5 years after the proceedings have concluded.
The situation along the Southern US border may become more tense as inflows of undocumented immigrants are likely to continue necessitating further action by authorities such as USCBP and local law enforcement. It is hoped that this problem can be dealt with in such a way that it does the least amount of harm to all concerned.
Fore related information please see: I-601 waiver or US Visa Denial.
11th December 2010
Man Loses United States Citizenship and Sentenced for Marriage Fraud
Posted by : admin
The issue of immigration fraud is a serious one. Authorities of the United States government within the Department of Homeland Security (DHS), the Department of State (DOS), the United States Citizenship and Immigration Service (USCIS), the United States Customs and Border Protection Service (USCBP), and the United States Immigration and Customs Enforcement Service (USICE) are all tasked with the responsibility of screening and investigating matters pertaining to visa and immigration fraud. It recently came to this blogger’s attention that the Immigration and Customs Enforcement Service, colloquially referred to as ICE, apprehended a Nigerian man in connection with US visa fraud. To quote directly from the ICE.gov website:
HOUSTON – A Nigerian man on Monday was stripped of his U.S. citizenship at his sentencing hearing for conspiracy to commit marriage fraud, marriage fraud, naturalization fraud, and making a false statement to a federal agency. The sentence was announced by U.S. Attorney José Angel Moreno, southern District of Texas. The investigation was conducted by the U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI). Ibraheem Adeneye, 33, who is originally from Nigeria and became a naturalized U.S. citizen, was convicted of the charges May 7 by a jury. He has been in federal custody on these charges for about six months. U.S. District Judge Kenneth Hoyt sentenced Adeneye to the time he has already served in prison. The judge also granted the government’s motion to strip Adeneye of his U.S. citizenship. Adeneye is now subject to deportation.
Denaturalization is the process by which a person is stripped of United States Citizenship and returned to foreign national status. Regarding the issue of sham marriage and the United States Immigration process, the report went on to note:
The ICE HSI investigation was initiated in 2008. Adeneye indicated that he was engaged in brokering sham marriages between Nigerian nationals and U.S. citizens so that the Nigerians could obtain immigration benefits, ultimately leading to U.S. citizenship. In return, the U.S. citizen “spouses” received cash payments to assist the Nigerians in the deception.
Incorporating a sham marriage into an effort to obtain United States visa benefits is a serious crime as can be seen from the above cited report. Those thinking of filing for American Immigration benefits should note that it is NEVER a wise course of action to lie to immigration authorities or attempt to deceive the United States government or its officers. Even if one becomes a United States Citizen, then previous fraudulent activity during the visa process could result in possible de-naturalization and criminal charges.
It should further be noted that those seeking American visa benefits should consult a licensed attorney in an effort to gain insight into the immigration process as only an American attorney licensed and in good standing in at least one US state is entitled to provide advice, counsel, and/or possible representation before the United States Department of Homeland Security and the Department of State.
For related information please see: K1 visa Thailand or K1 Visa Singapore.
8th December 2010
For those who frequently read this web log will undoubtedly note that a frequent topic discussed within these pages is Comprehensive Immigration Reform. In a recent document promulgated by the Congressional Research Service and distributed by the American Immigration Lawyers Association (AILA), the matter of legal inadmissibility was discussed in the context of Comprehensive Immigration Reform. The following is a direct quotation from the document published by the Congressional Research Service (CRS) and distributed by AILA:
Legislation aimed at comprehensive immigration reform may take a fresh look at the grounds for excluding foreign nationals that were enacted in the 1990s. All foreign nationals seeking visas must undergo admissibility reviews performed by U.S. Department of State (DOS) consular officers abroad. These reviews are intended to ensure that they are not ineligible for visas or admission under the grounds for inadmissibility spelled out in the INA. These criteria are: health related grounds; criminal history; security and terrorist concerns; public charge (e.g., indigence); seeking to work without proper labor certification; illegal entrants and immigration law violations; ineligible for citizenship; and, aliens previously removed. Over the past year, Congress incrementally revised the grounds for inadmissibility. Two laws enacted in the 110th Congress altered longstanding policies on exclusion of aliens due to membership in organizations deemed terrorist.
Terrorism has been a key concern for American government officials across the entire spectrum of agencies associated with Immigration and travel to the United States. Public health and safety are also significant issues for American Immigration and Consular Officers. To quote the aforementioned publication further:
The 110th Congress also revisited the health-related grounds of inadmissibility for those who were diagnosed with HIV/AIDS. More recently, the “H1N1 swine flu” outbreak focused the spotlight on inadmissibility screenings at the border. Questions about the public charge ground of inadmissibility arose in the context of Medicaid and the state Children’s Health Insurance Program (CHIP) in the 111th Congress.
Influenza has been concerning to many health officials in recent years. However, for many the removal of HIV/AIDS from the list of diseases which can result in a finding of inadmissibility was a relief as many individuals who were previously inadmissible to the USA may have immediately become admissible after HIV/AIDS was no longer a legal grounds for finding someone inadmissible to the USA. This issue was especially acute in the LGBT community as HIV and AIDS issues seem to have a disproportionate impact upon individuals and couples within that community. The report went on to note that issues pertaining to legal inadmissibility are likely to be discussed in the context of proposed Comprehensive Immigration Reform legislation:
While advocacy of sweeping changes to the grounds for inadmissibility has not emerged, proponents of comprehensive immigration reform might seek to ease a few of these provisions as part of the legislative proposals. The provision that makes an alien who is unlawfully present in the United States for longer than 180 days inadmissible, for example, might be waived as part of a legislative package that includes legalization provisions. Tightening up the grounds for inadmissibility, conversely, might be part of the legislative agenda among those who support more restrictive immigration reform policies.
Many people are found inadmissible to the United States every year. Among those found inadmissible are those who are unable to seek a remedy in the form of either an I-601 waiver or an I-212 waiver application for advance permission to reenter the USA. Individuals who have been found inadmissible and cannot seek a waiver are colloquially referred to as being unwaivably excluded from the United States. Bearing this in mind, many findings of legal inadmissibility can be remedied through use of a waiver. That said, the waiver process and the standard of proof for obtaining a waiver can be difficult to overcome. For this reason, many bi-national couples opt to utilize the services of an American immigration attorney to assist in matters related to United States Immigration. It is always prudent to ask for the credentials of anyone claiming expertise in United States Immigration law as only a licensed American attorney is permitted to provide advice, counsel, and representation in pending matters before the United States Citizenship and Immigration Service (USCIS), the Department of Homeland Security (DHS), and the American State Department.
For related information please see: US Visa Denial.
4th December 2010
Those who read this blog on a regular basis will no doubt realize that when new information regarding Consular processing comes out this administration tries to post it in an effort to provide insight to those processing a visa application through the relevant Post. It recently came to this blogger’s attention that the United States Embassy in Manila, Philippines is changing their protocols for Immigrant visa processing. The following is a brief quotation from the official website of the US Embassy in Manila:
Effective December 1, 2010, various changes to immigrant visa services are as follows:
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Immigrant visa applicants whose appointments have not been scheduled through the National Visa Center (NVC) (i.e., immigrant visa petitions approved by the U.S. Citizenship and Immigrations Services Manila) may request a visa appointment by visiting the U.S. Embassy in Manila’s Visa Information and Appointment Service online at http://www.ustraveldocs.com/ph or by calling (632) 982-5555. The Visa Information and Appointment Service is open Monday through Friday, from 8:00 a.m. to 8:00 p.m. (Manila time), except on U.S. and Philippine holidays. Callers in the U.S. should call (214) 571-1600, from 7:00 p.m. to 7:00 a.m. (Eastern Standard Time). Callers are able to speak with an English-, Tagalog-, Ilocano- or Cebuano-speaking operator.
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Visa Information and Appointment Service representatives can provide information on visa appointment-related inquiries only. Inquiries on a specific case may be directed to the Immigrant Visa (IV) Unit by e-mail at IVManilaReplies@state.gov or by fax at (632) 301-2591. Petitioners and applicants may also call the IV Inquiry line at (632) 301-2000, extension 5184 or 5185 during normal business hours.
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Immigrant visa applicants who have been scheduled by the NVC for a visa appointment at the Embassy are required to visit the online appointment website to register their delivery address.
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K visa applicants who have been notified by the Embassy to prepare for their interview, must pay the visa application fee of $350 before they can request a visa appointment via the online appointment website or the Visa Call Center
It should be noted that the above quotation does not encompass all of the information provided upon the official website. Those interested in obtaining further information are encouraged to correspond directly with either an American immigration attorney or the US Embassy in the Philippines.
The Consular Processing phase is usually the last phase of the US visa process for those with immigrant intent. Although in certain cases, a 221g refusal may be issued if the adjudicating Consular Officer feels that further documentation is required to process an application. Furthermore, a visa application may be denied if it is found that a legal grounds of inadmissibility exists in a given case. Under such circumstances, it may be possible to remedy the denial through use of an I-601 waiver of inadmissibility.
In American family based visa cases, the Immigrant Visa Unit of a US Consulate abroad is responsible for the adjudication of a visa application for those seeking a K1 visa, K3 visa, CR-1 visa, or an IR-1 visa. Those seeking a non-immigrant visa such as a B1 visa (US Business Visa), B2 visa (US Tourist Visa), F1 visa (US Student Visa), or J1 visa (Cultural Exchange Visa) must interview with an adjudicator at the Non-immigrant visa unit of the Post with Consular jurisdiction to adjudicate a visa application.
For related information please see: US Embassy Philippines.
1st December 2010
221g and Visa Denial at the US Embassy in Cambodia
Posted by : admin
Those who frequently read this blog are likely to note that we frequently discuss issues surrounding Consular processing of US visa applications. In some cases, a visa applicant is refused a visa, but issued what is commonly referred to as a 221(g) form. The term “221g” refers to section 221(g) of the United States Immigration and Nationality Act. Under this provision of the Immigration and Nationality Act, a Consular Officer adjudicating a visa application may refuse to issue a visa if the adjudicating Consular officer finds that the application is somehow deficient of documentation. Consular Officers are basically tasked with the responsibility of conducting due diligence regarding a visa applicant’s subjective intentions. Therefore, in a K1 visa interview the Consular Officer may be concerned with the Cambodian applicant’s subjective intentions regarding the K1 visa petitioner.
There is some debate as to the legal ramifications of a 221g especially in the context of the United States Visa Waiver Program. The American visa waiver program allows certain foreign nationals to enter the USA without a visa provided those individuals register on the Electronic System for Travel Authorization (ESTA). Although Cambodia is not currently a participating country in the Visa Waiver program it should be noted that a 221g refusal issued by a US Consulate or US Embassy abroad should be disclosed in the ESTA system when seeking travel authorization online. Therefore, a 221g refusal is effectively treated as a “denial” by the Department of Homeland Security which should be noted by anyone seeking American immigration benefits at an American Mission abroad since such a development could have an adverse impact upon one options at a later date.
Many are under the mistaken impression that a 221(g) refusal cannot be remedied. In point of fact, this is not the case as some 221g refusals simply require further documentation before a Consular Officer is prepared to make an adjudication in the underlying application. That said, in some cases, a 221g could evolve into a legal finding of inadmissibility which is an outright visa denial. In such cases, a visa applicant may be able to have the legal grounds of inadmissibility waived through use of an I-601 waiver of inadmissibility. That said, such waivers are adjudicated by the United States Citizenship and Immigration Service under an “extreme hardship” standard of review. This “extreme hardship” standard can be difficult to overcome for some. In any event, many couples find that the assistance of an American attorney can be beneficial during the US visa process or the I-601 waiver process as such an individual can provide insight into the process and advocate on behalf of the petitioner and beneficiary. Furthermore, some find that an attorney’s assistance can result in smoother overall processing of visa applications as such an individual can foresee issues which may arise in a given case and attempt to deal with such issues before they become a problem.
Receiving a 221g refusal letter after the visa interview can be worrying, but in some cases the issue can be resolved through better understanding of the adjudication process and relevant United States Immigration law. Those who receive a 221g refusal at the US Embassy in Cambodia are likely required to follow up within 1 year of issuance lest the visa application be deemed to have been abandoned.
For related information please see: US Visa Cambodia.
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