But My Lawyer Said My Visa Was Approved
Over the past several months, I have been contacted by a considerable number of people who appear to have been told by their lawyers that their “visas” have been approved upon receiving an I-797 (Notice of Action) for an approved petition. As a US immigration lawyer who practices outside the United States, I am asked to deal with cases for colleagues in the US needing local consular assistance. Recently, however, I have begun to notice a much higher number of applicants asking me to contact the relevant consular post to “fix” a case the consular officer got “wrong”. They have generally been under the impression that the decision was “wrong” because the lawyer filing the petition has told them, sometimes even in writing, “congratulations, your visa has been approved”, upon forwarding them the I-797 and instructed them to go to the U.S. Embassy to “pick the visa up”.
Petition approval does not guarantee that a visa will be issued. Although usually less document intensive, the visa application requires as much care and attention as the underlying petition and there are a number of problems that may arise during the consular part of the process that could potentially delay or even prevent a visa from being issued. Remembering when preparing the petition that the beneficiary is also an eventual visa applicant could help to avoid a number of these issues.
The information required to complete the relevant Department of State visa application forms, for the beneficiary as well as all dependant family members, should be asked before even starting to prepare the petition. Your time, your client’s time and your client’s money in preparing the perfect, RFE-proof, approvable petition may be wasted if the beneficiary cannot be issued a visa. I can illustrate this point more effectively by providing the following examples of cases I have been asked to assist with over the past several months.
1. The L-1A Manager
Both the UK parent and US subsidiary were long-established, viable businesses. The UK Marketing Manager was very good at his job and extremely well-regarded by his colleagues. The company determined that he would be the perfect candidate to manage the marketing campaign for a new product it was launching in the US. The lawyer preparing the petition asked all the “right” questions about employment history, qualifications, management experience, etc., and prepared a perfect L-1A petition. The lawyer emailed the beneficiary a scan of the I-797 and a link to the DS- 156 and DS-157 with instructions to book an appointment at the Embassy to “pick up” his visa.
As you might imagine (because I’m using it as an example) things at the Embassy did not go very well. The beneficiary disclosed that he had been arrested to the Embassy’s call centre when booking the interview and was given an appointment with a Visa Coordination Unit (“VCU”) officer, which was, at the time, the local procedure in London. At the interview, this beneficiary disclosed five drug convictions to the interviewing officer1. The VCU officer sent the beneficiary to the Embassy’s physician for a drug test, which he failed. The visa application was subsequently refused.
After having consulted with him, reviewing his police certificate and the report from the Embassy’s doctor, as well as the refusal from the VCU officer, I understood that he was refused under INA § 212(a)(1)(A)(iv) for being a “drug abuser or addict”, as well as under INA § 212(a)(2)(A)(ii)(II) for “violation or conspiracy to violate any laws or regulations relating to controlled substances”. In addition, because he inappropriately relied on the UK Rehabilitation of Offender’s Act and never disclosed his arrests on form I-94W on any of his twenty trips to the US under the Visa Waiver Program, he was refused under INA § 212(a)(6)(C)(i) for “misrepresentation when applying for a visa or entry into the U.S.”. At that point, although an argument against the refusal under INA § 212(a)(6)(C)(i) may have been made by challenging the “wilfulness” of the misrepresentation, there was not very much that could be done to overcome the underlying convictions and the current drug use. These were considered too serious to overcome and, needless to say, he will not be travelling to the US in the immediate future.2
As this case illustrates, there is far more to an Embassy interview than “picking up” a visa. Had his personal history been disclosed before the petition was prepared, it may not have resulted in a visa being granted, but it could have prevented a lot of time and money being spent on a beneficiary who would not be able to benefit the company in the US, and the company may instead have preferred to staff the position with someone who would have been able ultimately to relocate to the US.
2. The O-1 Entertainer
The petitioner was an artist management agency and the beneficiary was an artist with a long and distinguished career. He had recently been contracted to perform in the US and his O-1 petition was approved just as it had been six times before. He was sent the I-797 with a letter from the agent’s lawyer congratulating him on having his “visa” approved. He was instructed to fill in the required forms on-line and go to the Embassy to have the visa stamped into his passport. He had had several O-1 visas before, so he believed that this was a “routine” part of performing in the US. He completed his applications himself and went to his interview at a consular post that does not require disclosure of criminal or US immigration history upon booking the interview.
On the morning of his interview he was fingerprinted at the Embassy and, due to the updated technology, his past caught up with him. The consular officer asked him what had happened in the US several years before. He responded by saying that he wasn’t sure what she meant. She then told him that his fingerprint record, which had been uploaded to the Embassy’s system between his previous and current interviews, revealed that he had been convicted for drug possession in the US several years before. He confirmed his conviction but told the officer that he didn’t think he had to tell her about it because it happened in the US and he figured the Embassy would know about it. He contended that it had never been an issue before and he had been issued several visas. He was found inadmissible under INA § 212(a)(2)(A)(ii)(II) for “violation or conspiracy to violate any laws or regulations relating to controlled substances” and under INA § 212(a)(6)(C)(i) “misrepresentation when applying for a visa or entry into the U.S.”.
In this instance, his grounds of inadmissibility were overcome by having a waiver under INA § 212(d)(3)(A) granted. However, because this required a second appointment at the Embassy and it took time to have the waiver recommended and finally granted, he missed the performance for which he was meant to travel to the US. If the relevant questions had been asked before preparing the O-13 petition, the timing for filing it may have been changed to allow for the review of a waiver application and he may have been able to perform as scheduled.
In both cases above, had the relevant personal information about the beneficiary been collected before the petition was prepared, the final outcome and/or impact on the petitioner would have been different. By contrast, consider the following scenario:
A multinational corporate client wants to send an L-1A manager to the US to run a subsidiary office. She is asked to disclose her personal history as well as that of her dependants - a spouse and nineteen year-old son. She has no criminal history and her US immigration history is limited to casual use of the Visa Waiver Program to attend meetings several times a year. Her husband, however, who owns his own business, which he plans to establish in the US pursuant to his eventual employment authorization, was convicted for possession of cocaine while attending university. Additionally, her son, who intends to finish university in the US while his parents are working there, was convicted for shoplifting last year.
Under this scenario, the L-1A beneficiary should be issued a visa; however, her spouse and child may have issues with their applications. In terms of the L-2 spouse, although he would require a waiver of inadmissibility under INA § 212(d)(3)(A), it is likely that one may be granted and that he would be able to join his wife in the US. Similarly, it is likely that the L-2 child’s shoplifting conviction would fall under the “Petty Offense Exception” and he would not be deemed inadmissible.
Although the family would be able to relocate to the US temporarily, what happens if the L-1A is successful in her role in the US and the company wants to keep her there permanently? It would seem that filing an I-140 for her as a multi-national manager would be the next logical step. However, her husband was convicted of an offence involving a controlled substance that falls outside of the exception for simple possession of less than thirty grams of marijuana, and under the current law, he will likely not be eligible to become a Lawful Permanent Resident of the United States. Gathering information about his criminal history at the start – before even filing the first L-1 petition – and providing the information about the husband’s possible ineligibility for eventual permanent residence may have influenced the L-1A’s decision to accept the transfer. It may also have changed the type of visa on which the family travelled to the US. While there are numerous possible permutations under this scenario – for example, perhaps the husband could have applied for an E-2 and his wife could have worked for her company’s US employer pursuant to an Employment Authorization Document – one thing remains true: gathering the information about the intended beneficiary and her family members’ personal histories at the outset may have presented a much more realistic picture of the family’s US immigration options.
In addition to the potential pitfalls that can arise when dealing with petition beneficiaries who have committed a past offence, another issue that may occur at the consular phase of the process is petition reconsideration. The Foreign Affairs Manual has recently been amended to address this issue, by stating that "posts should refer cases to USCIS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by USCIS".4 While this note in the FAM specifically relates to L visa petitions, there are similar notes in other sections to address reconsideration/revocation of petitions for other categories. In practice, however, a consular officer may rely on the section of the FAM that provides that “the approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility”.5 The FAM also provides that a consular officer “may question the approval of…petitions with specific evidence that is unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status”.6
Despite the changes to the FAM, namely to the L and O visa sections noted above, I have recently seen O visa applications refused and the approval of the underlying petitions called into question by the consular officer who has requested that they be reconsidered by USCIS. When this happens, it can several take months for USCIS to review the petition and respond to the consular post with its decision and, during this time, the beneficiary may not be able to have a visa issued in any other category. In fact, a case was recently referred to me, in which an O-1 petition was sent back to USCIS for reconsideration and the beneficiary applied for another non-immigrant visa in a category for which she seemed to qualify. The subsequent visa application was refused under INA § 214(b) because the consular officer believed that the subsequent application was being made only so that the beneficiary could travel to the US to work for the O-1 petitioner and the beneficiary was told that no nonimmigrant visa would be issued to her in any classification until the USCIS reviewed her previous O-1 petition.
Unlike preparing a case for a visa applicant with a criminal or immigration offense, it is difficult to know when the issue of petition reconsideration might arise; however, knowing the consular post at which the beneficiary will eventually apply for the visa may help minimise the risk. Familiarity with the post’s attitude toward certain petitions can assist in anticipating what issues may lead to the consulate questioning the petition and supporting documentation. Taking the post’s attitude toward certain visa categories into account when preparing the petition and submitting supporting documentation to USCIS that also satisfies any specific consular “requirements” may help minimise the likelihood of a problem when the beneficiary presents the visa application on the other side of the world.
E-1/E-2 Visa Petition Approval Versus Consular Filing
As a final note on consular issues with respect to petition-based visa applications, I have observed several beneficiaries of approved E petitions attempting to apply for E visas based solely on the I-129 petition. For an E visa to be issued by a consular officer there must be a corporate E registration on file with the consular post having jurisdiction over the matter. The I-129 petition with E supplement may serve to change or extend someone’s status in the US. However, as soon as the beneficiary departs the US he or she will need to apply for a visa at the consulate before being able to return to the US in E status. To do so, the company must have a valid registration on file.
Applying for the corporate E registration at the consulate may also be an issue, as corporate E visa applications filed at a consular post are generally much more document intensive than I-129 petitions with E supplements filed with the USCIS. In fact, I recently met a US immigration lawyer who applied, unsuccessfully, for his own E visa at a consular post based on his approved I-129 petition without having a corporate registration in place. He then decided to file a corporate E visa application at the consulate with the same supporting documentation he used to support his approved I-129 petition and his application for corporate registration was also refused.
It appears that the consular posts may be aware of the different standards their E visa officers use to adjudicate corporate applications compared to those used by their colleagues in the USCIS. As a result of this, consular officers may refuse to issue B visas bearing the annotation “Prospective E-2 Investor” for applicants who are planning to open an office in the US and tell applicants that they should travel on the Visa Waiver Program for this purpose. As this is presumably to prevent the applicant from changing status in the US and gaining E status without filing a registration application, and it has happened to cases my colleagues and I have seen in consular posts around Europe, it leads me to believe that the issue may be quite widespread.
Moreover, as every consular post has its own format and specific requirements for submitting an E visa application, even if a change/extension of status petition is appropriate to keep someone in the US, the documents used to support that petition also should also be prepared to satisfy the post’s requirements where the registration application will eventually have to be submitted. It may even be beneficial to prepare and file both the I-129 petition and the corporate registration concurrently so that the corporate application is on file with the consulate in the event that the client has to travel outside the US unexpectedly and will need to apply for the visa before returning.
Understanding that visa processing is an integral part of the immigration process and that it is not a “given” that the visa will be issued and undertaking the relevant planning may save precious time and money in the long run. There is a network of qualified and experienced US immigration lawyers around the world who deal with their local US Embassies and Consulates on a daily basis. They have an in depth understanding of the local policies and procedures – just as our colleagues in the US know the inner workings of their local USCIS office. These lawyers will also know good criminal lawyers in their jurisdictions who can help prepare the relevant documents that will need to be submitted with a visa or waiver application for someone who has a non-US arrest or conviction. Using this resource or even simply reviewing the relevant Embassy or Consulate’s website before drafting the petition, in anticipation that the beneficiary will also eventually be a visa applicant, and advising accordingly may help to ensure that the entire process runs smoothly. This, in turn, may lead to fewer beneficiaries being refused visas at consular posts and left shaking their heads thinking…but my lawyer told me my visa was approved…
End Notes1Due to the nature and timing of these offences, they did not have to be disclosed to his employer in the UK during the hiring process under the UK’s Rehabilitation of Offenders Act; however, this does not apply to US immigration law.
3The same questions should be asked of all beneficiaries of related O-2 petitions, as petitioners may choose to remove an O-2 beneficiary with a past offence from the project to try to minimise the likelihood of issues during consular processing that may delay travel to the US.
Daniel Parisi is an Associate at ASG Immigration in London, UK. He spent a significant portion of his university education studying in Spain and France, where he became proficient in both Spanish and French. Mr Parisi earned his JD from New York Law School and is admitted to practise US law as a member of the Bar of the State of New York. Upon graduating, Mr Parisi was named Best Advocate of his class, and was inducted into the National Order of the Barrister (US) in recognition of his written and oral advocacy skills. Mr Parisi has been advising clients on US Immigration Law issues since 2003. Since that time, he has lectured on US immigration law issues both in the US and the UK and has co-authored articles for AILA. Mr Parisi is an active member of the AILA Rome District Chapter for which he has served as the Chair of the New Members Division, worked to plan several chapter conferences and participated on panels regarding issues of inadmissibility to the United States. He currently serves the Chapter as a member of the Communication Committee, for which he is a co-editor of the Chapter’s newsletter focusing on issues of US consular law.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.