An INS or consular officer may find an individual ineligible to receive a visa, 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; public charge; 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. Overstaying authorized visits to the United States can mean the imposition of a 3 or 10 year bar, depending on the time of overstay. 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 ineligibility?
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 Or an officer who originally made a finding of material misrepresentation and thus permanently barring the individual from the U.S. re–examined and nullified his decision upon presentation of exculpatory evidence. It should also be kept in mind that questionable «poison letters», «guilt by association,» 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 non–immigrant visa waivers are available. The standards for the granting of a waiver for a non–immigrant visa are relatively lax: 1) the risk of harm to society if the individual is admitted; 2) the seriousness of his or her violations; and 3) the reason that the alien is seeking admission. In addition, it is necessary to show the non–immigrant intent of the applicant: that he or she will return home after a short visit to the United States. The granting of an immigrant visa waiver is much more limited: it may be granted to the spouse, son, or daughter of a U.S. citizen or permanent resident for certain ineligibilities if extreme hardship to the interested U.S. person can be proven. This is a difficult standard to satisfy.
Humanitarian Parole. This may be an appropriate option if there is 1) a reason why a person is unable to obtain a visa; and 2) there are medically emergent or humanitarian circumstances which justify permitting the individual to enter the U.S. For example, a child who was separated from his immigrant parents and was ineligible for a diversity lottery visa because of the program’s expiration was granted humanitarian parole. Another child was separated from her parents because of a bureaucratic technicality and incompetent counsel was granted humanitarian parole.
How does W&A help?
As can be seen, these kinds of visa situations are serious, and often have tragic consequences. Because of the complexity and consequences of these matters, it is advisable to retain qualified legal counsel. We are experienced in dealing with each of the above situations. We are able to formulate a strategy, clarify and re–construct events, and represent your interests at appropriate embassies, consulates, and INS offices. While sometimes an instance may be resolved easily by correcting a misunderstanding, usually these cases require comprehensive legal support. Preparation of affidavits, legal memoranda, scientific/forensic testimony, and voluminous supporting evidence are often part and parcel of the representation process. If you have such a problem, feel free to contact us for a no–obligation consultation.
