Integrity Legal

Posts Tagged ‘221(g) refusal’

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:

  • 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.
  • 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.
  • 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.
  • 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.

more Comments: 04

1st December 2010

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.

more Comments: 04

30th November 2010

Those who are regular readers of this blog will no doubt be aware that the issue of 221(g) denials promulgated in relation to visa applications brought before at US Missions, Embassies, and Consulates outside of the United States can be very concerning for those seeking American Immigration benefits for a foreign loved one. In the case of the US Embassy in Vietnam, most US family visa cases are processed out the US Consulate in Ho Chi Minh City. It would seem that the American Consulate in HCMC is considered by State Department officials to be a “high volume” Post as a significant number of visa applications are adjudicated in that jurisdiction each year. Meanwhile, as is the case for any US Mission abroad, the officers at the US Consulate in HCMC take visa fraud seriously and therefore heavy scrutiny is placed upon pending visa applications in an effort to ensure that those receiving visa benefits are legally entitled to such benefits. Furthermore, Consular Officers also review US family visa applications very carefully in order to ascertain whether or not a prospective foreign beneficiary has the requisite subjective intent. Subjective intent is often of great concern in K1 visa applications as the applicant must have a genuine intention to marry their American fiance within 90 days of entering the USA.

The culmination of the US visa process is usually the visa interview which is generally conducted at the US Mission with Consular jurisdiction to adjudicate the visa application. However, in some cases, a Consular Officer may feel that further documentation is necessary in order to complete the adjudication. The American State Department refers to the 221(g), which is a reference to section 221(g) of the United States Immigration and Nationality Act, as a refusal although for purposes of the Department of Homeland Security the 221g is considered a denial. This can be an important distinction for foreign nationals holding the passport of a country which participates in the US Visa Waiver Program as the United States Customs and Border Protection Service (USCBP) considers 221g refusals to be denials which must be disclosed by travelers through the Electronic System for Travel Authorization (ESTA). It should noted that Vietnam is not currently a participant in the Visa Waiver Pilot Program.

In some cases, 221g denials are highly complex and may cause frustration to the applicant and/or their American counterpart. Some find that attorney assistance can be beneficial. An American Immigration attorney can provide insight into the overall process and also assist in making a follow-up with the US Consulate regarding a 221g denial. Furthermore, American Immigration attorneys based in South East Asia can deal with such matters before the Consulate in real time. This can be especially beneficial if the 221g evolves into a situation in which the visa application is denied due to a legal finding of inadmissibility. This can sometimes occur and in such an event the finding of inadmissibility may only be overcome through use of an I-601 waiver. In some cases, there may be no remedy if the applicant is found inadmissible for reasons that cannot be waived. Those thinking about filing for immigration benefits should always be aware that putting on the best case at the outset is the most efficient way of attempting to ensure visa issuance.

For related information please see: US Visa Vietnam or US fiance visa.

more Comments: 04

27th August 2010

Those with pending visa petitions and applications may have only had a passing experience dealing with the National Visa Center. For example, the National Visa Center plays a rather small role in the K1 visa process. Meanwhile those seeking a CR1 Visa or an IR1 Visa have probably had extensive dealings with the National Visa Center (NVC). In recent weeks, the NVC changed some of their processing policies for certain US Marriage Visas. Therefore, many of those seeking K3 Visa benefits have seen their application “administratively closed” by the NVC where the underlying I-130 arrived prior to, or contemporaneously with, the I-129f petition. In a recent announcement from the American State Department it was announced that NVC has begun a pilot program that many hope will eventually lead to simplification of the NVC document compilation process. To quote directly from the State Department’s announcement, as distributed through AILA:

The Immigrant Visa Electronic Processing Program is a pilot project which uses electronic communication and documentation methods to simplify and accelerate the immigrant visa application process. This program uses e-mail for communication and submission of all forms and documents to the NVC using the Portable Document Format (PDF). Under the Electronic Processing Program all forms will be downloaded, completed, signed (if required), scanned, saved as PDF files, and e-mailed to the NVC. Required civil documents and supporting documents must be converted to PDF files by scanning and e-mailed to the NVC. After the NVC has completed processing the applicant’s petition, the applicant will need to present the original physical documents to the US Embassy/Consulate at the time of the applicant’s visa interview. Failure to do so may cause a delay or denial of the visa being sought.

It is this author’s opinion that this policy change will have a tremendous impact upon the US visa process and will likely lead to faster visa processing in general. It will be interesting to see how this new program will impact US Consular Processing abroad. As noted in the announcement, original documentation will not be required by the NVC in some cases. Those who did not remit original documentation to the NVC may need to do so at the visa interview which usually occurs at a US Embassy or US Consulate with appropriate jurisdiction. Those who fail to remit such documentation may be subjected to a 221g refusal. In some cases, issuance of a 221g can delay a case by weeks, or in a limited number of cases the case could be delayed by months.

That said, those seeking visas to the United States are still well advised to seek the assistance of a competent licensed American attorney from the USA. Regardless of increased processing efficiency, there are many factors which can affect a visa application and competent advice and counsel can forestall unforeseen problems.

For related information please see: US Attorney Thailand.

more Comments: 04

24th August 2010

Those familiar with this blog may recall that new measures have been implemented that can have an effect upon those traveling to the United States on the Visa Waiver Program. The Department of State (DOS) recently released a cable which outlines soon-to-be implemented changes to the Electronic System for Travel Authorization (ESTA). The following is quoted directly from the Department of State Cable as distributed by the American Immigration Lawyers Association (AILA):

Summary: This cable provides additional information on implementation of the Travel Promotion Act of 2009 (TPA) and fee collection for the Electronic System for Travel Authorization (ESTA), requests posts to engage in outreach, and provides talking points. End summary.


3. As previously reported (Ref a), President Obama signed the TPA into law on March 4, 2010. The TPA will create a partnership between the U.S. government and the private sector to market the United States as a travel destination for international visitors. Fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.


4. On August 6, 2010, DHS announced an interim final rule that amends DHS regulations to require travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14.00, with $4.00 to recover the cost of administering the ESTA system and $10.00 as mandated in the TPA.


5. The Department is working with DHS and the Department of Commerce to notify foreign and domestic media, the travel industry, and other stakeholders about this change. The Department requests that consular officers in VWP countries, in coordination with DHS and Commerce representatives, meet with host government officials, and airline, tourism, and other stakeholders to inform them of the new fee provisions connected to ESTA. Please contact the ESTA Program Management Office [redacted] for outreach materials or requests for ESTA representatives to travel in-country. They will do their best to accommodate. This cable is being sent as an ALDAC to facilitate all posts answering questions from citizens of VWP countries and the general public.


6. The Department supports the TPA goal of attracting international visitors to the United States. Our greatest diplomatic tool for sharing American values is America itself, and we recognize the critical importance of travel and tourism to our economy and job creation. The Department looks forward to working with the Corporation for Travel Promotion to ensure that prospective visitors to the United States receive comprehensive, up-to-date information on travel documents and requirements for entry.

The Travel Promotion Act mentioned above will likely have significant consequences for those foreign nationals traveling to the United States pursuant to the conditions of the visa waiver program. Therefore, those originating in a country that has visa-free travel privileges to the USA may be wise to research both the US Visa Waiver Program and the ESTA program. Fortunately, the aforementioned cable also included a Frequently Asked Questions Section. The following FAQ’s were quoted from the previously mentioned DOS cable distributed by AILA:

Q. What is the new fee charged to travelers?
A. It is $14.00. Since the implementation of ESTA, DHS has had discretion to charge a fee to cover administrative costs. DHA determined that cost to be $4.00 per registration. The TPA fee adds an additional $10.00.


Q. When will the fee go into effect?
A. ESTA registrations on or after September 8, 2010, will be subject to the fee.


Q. How do travelers pay the fee?
A. At this time, payment is required through the following credit cards: Mastercard, Visa, American Express, and Discover. Payments can also be made with a debit card that holds the Visa or Mastercard symbol. Please check with your bank on the compatibility of your debit card. We are continuing to explore other payment measures. The ESTA registration form already in use will walk users through the payment process.


Q. What types of privacy protection exist on the website?
A. “Pay.gov” uses advanced encryption to protect transactions while applicants are logged in. When accessing a profile, any account numbers entered will be masked on-screen.


Q. How long are ESTA approvals valid?
A. Each approved ESTA application will be valid for a period of two years unless the traveler’s passport expires sooner. It allows for multiple visits to the United States within that application.


Q. If I have a valid ESTA, will I have to re-register when the new fees go into effect?
A. No, existing ESTA registrations remain valid for travel through their expiration date.


Q. Is ESTA approval like a visa?
A. An ESTA approval is not a visa under U.S. law, nor does it confer the same benefits as a visa.


Q. Will this attract more international visitors to the United States?
A. Oxford Economics, a leading economic forecasting consultancy, estimates that the TPA program will generate $4 billion in new visitor spending, and lead to the creation of 40,000 new jobs.


Q. Why do VWP countries have to fund this travel promotion program through ESTA fees?
A. Some countries fund tourism promotion through airline or hotel taxes. The Travel Promotion Act legislation specified that the U.S. government fund this program through a $10 fee added to ESTA registration.


8. The following are Visa Waiver Program member countries: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom…

At the time of this writing, the Kingdom of Thailand is not a member of the United States Visa Waiver Program. Therefore, ESTA rules have little impact upon most Thai nationals. That said, as pointed out in previous blog posts, relevant regulations may require those who have been issued a 221g refusal to disclose this refusal as a “visa denial” for purposes of travel to the USA on the Visa Waiver Program. It would seem that at the time of this writing the Department of State and the United States Customs and Border Protection Service (USCBP), an agency under the authority of the US Department of Homeland Security, view 221(G) refusals differently. Those who have been issued a 221g who still wish to travel to the United States may be wise to contact a US lawyer in order to deal with a pending 221g refusal.

Those who are from countries that do not participate in the Visa Waiver Program should seek a US visa before traveling to the USA. For information about the US Tourist Visa please see: B2 visa.

more Comments: 04

22nd May 2010

Please be advised that the following was posted upon the official website of the United States Embassy in Bangkok, Thailand:

IMPORTANT ANNOUNCEMENT

U.S. Embassy Visa Services Closed May 24, 2010

Due to continuing security concerns in the area and access issues on Wireless Road, the U.S. Embassy is currently operating under emergency personnel staffing only.  The Non-immigrant and Immigrant Visa sections will be closed May 24, 2010.  If you have a non-immigrant visa interview appointment scheduled for May 24, 2010, your appointment will be rescheduled.  As soon as the U.S. Embassy has determined the situation to be safe for Embassy Consular staff to return to work and for visa applicants to travel to the Embassy for visa appointments, we will advise those impacted through e-mail or phone with details on new appointment dates.  Please Note:  As a large number of people have been affected by these events, and the volume of appointments that have been scheduled for the upcoming weeks, it will not be possible to consider expedited appointments.  We apologize in advance for any inconvenience this has caused.

Frequently Asked Questions

How can I reschedule my appointment?

At present, we must ask applicants with visa appointments scheduled for the period of May 14 through May 24 to wait until the Embassy has determined when that it is safe to conduct visa appointments.  All those impacted by this unexpected closure will be notified through the e-mail address or phone number provided during the visa interview appointment process.

I had a visa appointment scheduled during the period of May 14 – May 24.  I have urgent travel to the United States, what can I do?

Unfortunately, due to the current security situation, the U.S. Embassy Visa Services is currently closed.  We are unable to reschedule any visa appointments for applicants who had appointments made for the period of May 14 – May 24 and will be unable to accommodate expedited appointments.  We suggest that you make alternate travel plans.

I had a visa appointment scheduled during the period of May 14 – May 24.  Can I reschedule my appointment at another U.S. Embassy in a neighboring country?

Each U.S. Embassy has its own scheduling system and requirements for visa applicants.  Fees paid in Thailand for the visa interview cannot be used abroad.

I had a visa appointment scheduled during the period of May 14 – May 24.  Can I reschedule my appointment for the U.S. Consulate General in Chiang Mai?

The U.S. Consulate General in Chiang Mai has its own appointment system and you must live within their consular district to schedule an appointment there.  Please see http://chiangmai.usconsulate.gov/ for more information.

I had a visa appointment scheduled during the period of May 14 – May 24.  Can I make a special request?

Due to the current security situation, the U.S. Embassy Visa Services will be closed for the period of May 14 – May 24.  As such, we will be unable to reply to visa inquiries and/or special requests during that period.  We sincerely apologize for the inconvenience our disruption of service has caused.

I am an immigrant visa applicant – can I come in for my scheduled appointment, to drop off documents, or to pick up my visa?

If you had/have an immigrant visa appointment for the period of May 14 – May 24, it will be rescheduled.  You will be contacted with a new date and time once the Embassy reopens.  If you have been told to bring in documents on Mondays or Wednesdays, or to come in to pick up your visa, please do not come in until the Embassy reopens.  Please look for announcements on the Embassy website.

The documentation mentioned above is likely referencing 221g refusals or requests for other types of documentation related to the issuance of travel documents such as, but not limited to, the K1 visa, the K3 Visa, or Immigrant visas such as the CR1 Visa and the IR1 Visa.

For further information about American attorney assistance in Immigration matters as well as Consular Processing in Bangkok, Thailand please see: US Embassy Bangkok and/or US Embassy Thailand.

more Comments: 04

The hiring of a lawyer is an important decision that should not be based solely on advertisement. Before you decide, ask us to send you free written information about our qualifications and experience. The information presented on this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.