Here are some of the common reasons for some of the previous visa denials we’ve been seeing at our office recently. The first two are if you don’t provide all the documentation. For example, if you’re missing a birth certificate or a police record. The second one is under section 241(b) of the Immigration and Nationality Act. That is the consular officer saying. “I don’t believe that you want to come to the U.S. for a nonimmigrant purpose, meaning a temporary purpose. It seems to me that you’re trying to immigrate.” That’s where the denial would occur. For these two ones that I’ve mentioned, there aren’t waivers to overcome this. What happens is you would need to re-apply.
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I want to focus more on individuals who have mainly been denied in the past. Or maybe being convicted of a certain crime, a drug violation, maybe a weapons violation. Or maybe individuals that have been in the U.S. in the past that maybe have been deported due to maybe providing false information to the government. Marriage fraud, for example. Or if you hadn’t been to the U.S. at a previous time and you overstayed your visit. If you overstay by more than six months or if you overstayed for over more than one year.
E-2 Visa Option
Those are the types of denial we’ve been seeing recently at our office. And so the main question that we get from clients is, how do I overcome a previous denial? One of the pieces of advice that we give to clients is that if they are from an E-2 visa treaty country if they’ve ever considered applying for an E-2 investor visa.
The reason why we sometimes throw out that idea to clients is that, with the E-2 visa coupled with a waiver for previous inadmissibility or a previous denial, the waiver applications seem to be approved at a higher rate. And we believe it is because as an investor you are bringing a benefit to the United States. You are bringing money to the U.S. and you’re also bringing jobs to the United States.
To overcome denial and if you want to apply for an E-2, you have to apply for a waiver. If you are found inadmissible or ineligible for entrance to the United States or obtaining a country’s visa, a waiver is a solution. Is a type of pass basically that government gives you to be able to have your E-2 visa approved despite having a previous denial. Or having a previous inadmissibility issue in your file.
Standards Used by the Consular Office
I wanted to talk about the standard consular office uses when they are evaluating a waiver. The first thing that I always tell our applicants is that when you’re applying for a waiver there are factors outlined in the manual for the consular officers.
This guidance that they provide them comes from a case called Hranka, Matter of Hanka. It’s a case from the Board of Immigration Appeals, an old case, from 1978. But that case outlines all the requirements that an applicant must meet to have a nonimmigrant visa waiver approved.
I want to go over some of the main factors. There are three main factors. The first one is what is the risk of harm to society if the applicant is admitted if they’re approved? If they approve their waiver and are allowed to come in, is there a risk to the United States for doing this? For example, is there a national security risk? Is this person a dangerous individual?
The Seriousness of the Act
The second factor that the immigration officer, consular officer, looks into is the seriousness of the act. They want to see how bad was it. Was this charge a felony? Was this under the misdemeanor? For example, it was a criminal conviction. They’ll also look at…brings us to the type of crime. Some types of crimes that probably will not get approved are just very serious crimes, like murder convictions. But on the other hand, other inadmissibility factors could be waived. For example, if you were in the U.S. previously. And you engaged in unauthorized employment. Which has been very common for some of our clients, or for some reason you overstayed. Some of those are types of inadmissibility factors that would likely receive a waiver.
What’s the Importance of the Applicant Entering the U.S.?
Basically, and what I talk about in the beginning is, what benefit is this applicant bringing to the United States? So if it’s a business-related reason like I indicated, if you’re opening an E-2 visa company, then this business benefits the United States. This would be a fantastic reason for the consular officer to recommend that your waiver be approved.
And then some other things that the government will look at are the nature of the offense, what the circumstances are that led to the offense, or you may be overstaying or working without documents in the United States. How recent it was and we put a little note here that any crimes that are committed or inadmissibility that occurred within the last five years, it’s tough to get those types of waivers approved but not impossible.
Our office has had great success with having waivers approved. Even two years after the applicant was either deported. Or it was discovered that there was an immigration violation that may have occurred.
And then they’ll also look into whether it was an isolated incident, is it a pattern of misconduct? And so that relates to maybe if there are drug possession or drug use inadmissibility issues.
How to Overcome a Potential Denial
We assist clients with methods of showing that they’ve reformed or… that they have been rehabilitated. If you work with our office, we can discuss some of those things with you further. The other thing that individuals need to remember is that for these types of waiver cases, they look into the Matter of Hranka, they refer back to that case. I want to talk a little bit about what that case entailed and who was involved in that case.
This case related to a Canadian woman who had been convicted of prostitution and had admitted to heroin use to a law enforcement officer. And based on that she was deported, she then reapplied for another visa and that visa was then subsequently denied. That case was appealed to the Board of Immigration Appeals. And the Board of Immigration Appeal reversed the denial. And they indicated that to have a waiver approved, the reasons for you wanting to have a visa don’t have to be a compelling reason.
The other thing that they pointed out, in that case, is that it’s discretionary for the officer to recommend approval of a waiver. And what that means is that the officer can look at all of the factors in your case to consider all of the evidence, consider factors like rehabilitation and consider factors as to the recency of the violation and decide whether you are deserving of that waiver.
How Exemptions Are Formulated under the Immigration Nationality Act
In essence, these waivers are formulated in a way and structured under the Immigration Nationality Act to be very liberal, to be accessible to individuals. That being said, although that is what the intent was, we are seeing recently that the administrative review office, which is the office that approves or denies these waivers, is sometimes taking a stricter stance and we don’t know if it’s maybe related to the new administration.
Based on that, we do highly recommend that you engage with competent counsel and counsel that is very well-versed and experienced with these types of waivers.
And one other tip that’s not on the slide, but that I kinda wanted to give you if you are going to work with an attorney is, that I would recommend that before you meet with the attorney write down your story. Explain what happened, how it happened, where it happened, and what led up to the violation.
