http://www.hilglaw.com/articles/articles29.htm
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People who are applying for non-immigrant (temporary) visas such as a visitor's visa (B1 or B2) or student visa (F1), as well as those applying for permanent immigration, can be found ineligible for a visa based on a variety grounds. For example, the U.S. Consulate may not issue a temporary visa to a single person who does not have a good job or other strong ties to his or her home country on the basis of the notorious section'214(b)'. In other words, the U.S. official reviewing one's application believes that you have not met your legal burden of showing him/her that you will indeed return home after the temporary visit to the United States.
In a case of a s.214(b) refusal, one can simply make a new application with new or better information and supporting documentation showing the likelihood and certainty that the visit is truly temporary. Unfortunately, the dice are cast against 'proving' a negative. A more ominous situation, however, arises when a visa refusal is based on other grounds of excludability such as prior misconduct or other misrepresentation made to the U.S. Consulate and/or Immigration Inspectors at a port of entry. These situations require the filing of a more formal waiver application.
Although the BCIS and Consular Officers have broad discretionary power to grant waivers for people previously found inadmissible, these waivers are not easily obtained, especially when the grounds for excludability are based on prior criminal convictions (including even minor drug offenses), prostitution, public charge concerns, previous deportation and exclusion, material misrepresentation or fraud, and alien smuggling, to mention just a few. One may be surprised to learn from the above list of grounds of ineligibility, that the U.S. government takes what may seem to be even minor misconduct very seriously. Abusing the U.S. system such as attending the public schools, receiving or attempting to receive public benefits, lying to border inspectors about one's intention in the U.S., attempting to change one's visa status too soon after an entry, slight overstaying, and bringing one's children into the U.S. so that they can later change status (which can be interpreted now as 'alien smuggling'), I have found is often done without a serious thought about later consequences.
If your visa application has been denied based on a prior misconduct other than s.214(b), you must first present your request for a waiver in person to a U.S. Consular Officer. The Consular Officer then decides whether to recommend the waiver issuance to BCIS, and BCIS ultimately makes the decision to either approve or deny the waiver. The Consul cannot issue a visa unless the BCIS acts favorably on the waiver request. The processing of waiver applications is not a 'high priority' with the BCIS and may take more than several months.
Please note that when considering a waiver application, the BCIS will consider three factors: the risk of harm to society if the applicant is admitted; the seriousness of the applicant's prior violations or convictions, if any; and the reason for wishing to enter the United States. In addition, the BCIS will look at the passage of time since the ground of inadmissibility occurred. This is called the period of rehabilitation, and the more time that has passed since the incident took place, the more likely BCIS will make a favorable determination.
We are frequently asked what the minimum time is that one should wait before applying for a waiver. There is no definite guideline. A three-year rule of thumb is frequently raised, but each case must be comprehensively reviewed.
Once again, a s.214(b) refusal should not be confused with a Denial, above; it is simply a determination by a Consular Official, based upon facts and documents presented (at a specific point in time), that the officer does not believe the applicant has met one's burden to show that he/she will return home after a temporary visit to the U.S.; it also is an indication the applicant did not meet his/her burden of showing sufficient and strong 'ties' to his/her home country. The applicant may reapply at anytime.
In summary, the best policy is, of course, knowing the law, and burdens to overcome, before applying for a visa, and avoiding any misconduct (in prior trips or visits to the U.S. Consulate or on entry to the U.S.). Ignorance of law is not a defense. One must realize that as a temporary visitor to another country, it is wise to live by the legal boundaries imposed and be careful not to violate the rules. However, if one has already found themselves ineligible for a visa, and for a variety of reasons wishes to reapply, either as a non-immigrant (visitor or student, or in another category), or as an immigrant, professional and qualified legal help must be sought to review one's situation and, if applicable, make a waiver application.
Remember, you can always email us at Heller@hilglaw.com, or call us toll free at (800) 863-4448. We offer consultation free of charge!
_______________________________
Paul M. Heller, Esq. (Founder/Principal)
Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
A Silicon Valley-based law firm specializing in employment-based immigration, for corporations seeking fixed monthly retainer fee arrangements.
Toll-Free: 1/800 863-4448; Local: 1/650 424-1900; Int'l: 1/650 424-1900; Fax: 1/415 276-9099
Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)
Heller Blog: blog.hilglaw.com
YM: paulhilg
Friday, August 10, 2007
What To Do When Your Visa Application Is Denied
Thursday, July 19, 2007
VISA BULLETIN FIASCO II, What's Wrong With USCIS?
Clients have been asking me "what is going on with this 'everybody' can adjust thing?" My answer is that the USCIS is 'broken', meaning that it is a confused governmental agency, with no real funding, i.e., money, but more importantly, no direction or will to act with focus.
There is a 'history' here, a story to tell. Years ago, I'd say about 20 years back, the former INS pretty much told politicians and Congress what was needed in terms of changes that needed be made to the immigration law, and Congress went ahead and gave them what they needed (including funding); the INS proposed regulations, and, even technical corrections (when they needed to), and they were summarily adopted and implemented. Today, the attitude of the USCIS is, "We will not take the lead", "you go first"; we will not act as the experts we are, "you tell us". Therefore, no one is willing to act, or if Congress acts, as they have several times in the past, we end up with ridiculous 'political', often draconian solutions, and the INS/USCIS justs says "ok". Everyone is afraid. Congress won't, and now politically "can't" act - so things are frozen and we are stuck with a broken system that was never meant to work in a totally different environment, under a completely different economy, and labor situation. Of course, the last time we produced engineers, and even scientists, was in the 1950s. Nor can we fulfill the needs of Silicon Valley - Congress woke up for awhile, when they increased the quota for H-1bs, but that is long past.
People, including those in Congress, don't understand that even our 'preference system' was designed with far fewer people wanting to come here. The 'lines' that we have all come to see and experience, the "wait", was never meant to be. Can you imagine anyone telling a PR who marries someone overseas, or for that matter, even someone here, that they must wait 3-5 years to bring their spouse to the country to join them, or allow them to maintain a legal status here? It's absurd and never meant to be - but is a direct result of a broken system that no one is willing to fix.
But here is the point of this 'blog'; what is happening (by accident) now, under the recently 'revised' visa bulletin, that is, allowing everyone, from every country, regardless of the wait, or line, on the employment-based side, to adjust their status (if otherwise eligible), makes alot of sense - and should be continued long past August 17, 2007.
I'd like my readers to comment on this - to see if you know where I am going.
Or just email me: heller@hilglaw.com.
More tomorrow, or early next week; thank you.
Best,
Paul
Tuesday, July 17, 2007
What the USCIS Adjustments Mean, July 17th Visa Bulletin Update
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Dear Readers,
As many of you know, the USCIS issued July Visa Bulletin (#107) on June 12, which made current all employment-based visa numbers, thereby allowing people in those categories to apply for adjustment of status and obtain permanent residency. The USCIS then announced on July 2, 2007—the first day that July Visa Bulletin #107 was to go into effect—that it was reversing its position to make unavailable all employment-based visa numbers. The effect was that all those who thought their number had become current, were ineligible to apply for adjustment of status.
Today the USCIS once again reversed themselves and posted a memo making all those originally eligible under the July Visa Bulletin (#107) to adjust their status between July 17 – August 17, 2007. The effect is that all those originally eligible to adjust their status under the July Visa Bulletin issued June 12, are once again eligible to adjust their status.
On the employment-based side, this means hat everyone who has a PERM approval can currently file their I-140/I-485 petition/application (along with dependent children and spouses). This application is also filed with form I-765 allowed for work authorization and, if eligible, filed with form I-131 for ‘advance parole,’ which allows applicants to travel in and out of the country while their I-485 application is pending.
Also important for many is the ‘portability’ rule in AC21, which allows employees to port (switch) to another job with another company 180 days after the filing of their I-485 application.
Whether you are a company requesting HILG to begin the process of filing I-485 applications or concurrent I-140/I-485 petition/applications on behalf of employees , or an employee who wishes us to file on their behalf (pre or post I-140 approval), please do not hesitate to contact us below. Thank You.
__________
http://hilglaw.com/contactus.htm
Please Email us
___________________
Paul M. Heller, Esq. (Owner/Principal)
New Silicon Valley Office:
Heller Immigration Law Group, LLP
2479 E. Bayshore Rd., Suite 709
Palo Alto, CA 94303
Tel: 1.650.424.1900 x11; Fax: 1.415.276.9099
Email: heller@hilglaw.com; www.hilglaw.com (formerly: greencard1.com)
THE BULLETIN:
Office of Communications
July 17, 2007
Contact: Office of Communications
202-272-1200
USCIS Update: Adjustment of Status Applications, I-485 Adjustment
USCIS Update
USCIS Announces Revised Processing Procedures for
Adjustment of Status Applications
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced that,
beginning immediately, it will accept employment-based applications to adjust status (Form I-
485) filed by aliens whose priority dates are current under the July Visa Bulletin, No. 107.
USCIS will accept applications filed not later than August 17, 2007.
On July 2, 2007, USCIS announced that it would not accept any additional employment-based
applications to adjust status. USCIS made that announcement after receiving an update from the Department of State that it would not authorize any additional employment-based visa numbers for this fiscal year. After consulting with USCIS, the Department of State has advised that Bulletin #107 (dated June 12) should be relied upon as the current July Visa Bulletin for
purposes of determining employment visa number availability, and that Visa Bulletin #108
(dated July 2) has been withdrawn.
“The public reaction to the July 2 announcement made it clear that the federal government’s
management of this process needs further review,” said Emilio Gonzalez, USCIS Director. “I
am committed to working with Congress and the State Department to implement a more efficient
system in line with public expectations.”
USCIS’s announcement today allows anyone who was eligible to apply under Visa Bulletin No.
107 a full month’s time to do so. Applications already properly filed with USCIS will also be
accepted. The current fee schedule will apply to all applications filed under Visa Bulletin No. 107
through August 17, 2007. (The new fee schedule that becomes effective on July 30, 2007, will
apply to all other applications filed on or after July 30, 2007).
-USCIS
Please Contact: heller@hilglaw.com
We have staff waiting to help you with your I-485 adjustment needs.
