What Do You Do When Your Visa Application Is Denied?
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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.
Yet, most hopeful immigrants are either unwilling or unable to meet the stringent requirements of this category and opt out for another category. First, the basic investment amount is $1 million unless the business is established in a “targeted employment area” or “regional center”, in which case the required investment is $500,000. Second, the investment must create at least 10 full-time jobs for U.S. citizens, lawful permanent residents or other immigrants lawfully authorized for employment in the United States except in the case of an investment in a “troubled business” or “regional center”. The jobs held by the investor and his immediate family members are not counted for the 10 jobs. Third, the alien investor will either have day-to-day management control of the business or act as a policy maker, including a corporate officer and a limited partner. Fourth, in order to deter fraud, immigrant investors, their spouses and dependent children are subject to conditional permanent residence for a two-year period until the INS re-examines the business and determines that all the requirements have been met.
As one can infer from the above, it is not easy to create 10 new and full-time jobs and sustain it for over 2 years even if one can meet the minimum $1 million investment requirement, especially when the investor, a foreigner, is not very familiar with the US business environment. It is a very substantial risk one must take. Also, in most cases, the hopeful investor immigrants are well-settled and successful middle-aged or older entrepreneurs, executives, or retirees, who are not interested in actively managing the new business. However, indirect management will not qualify them for the investor immigrant category. If they wanted to actively manage their own branch office or subsidiary in the U.S., they could easily obtain an immigration visa through the first-priority category – a much cleaner route. Because of the impracticality of the requirements, several private companies have attempted to establish complex business structures that comply with the relevant statutory and regulatory requirements while still protecting the investor from risk.
Such business arrangements often involved guaranteed interest payments, “buy and sell” options, and other mechanisms designed to limit the investor’s risk. According to the some arrangements, the investor only had to deposit $100,000 down payment of cash for 5 years with the remainder in the form of a promissory note and received even the down payment back at the end of the contract. By the end of 1997, these business structures were determined not to comply with the statute and regulations governing this category, which resulted in retroactive revocation of previously approved petitions and termination of the status of existing conditional permanent residents. Petitions involving such complex financial arrangements will no longer be adjudicated.
Given the above account of this investor immigrant category, I would caution the reader against participating in any complex financial arrangements with the promise of a green card. At the same time, I also wish to clarify that the investor immigrant category is still open and available to real investors. A hopeful immigrant should first have a full consultation with a qualified immigration attorney to explore all available immigration options and possible exceptions such as “targeted employment area”, “trouble business”, and “regional center” to determine one’s eligibility. The history surrounding the investor immigrant category serves as a clear illustration that fraudulent and deceitful petitions will have a consequence in the future and that it is extremely important to work with a qualified and trustworthy immigration attorney.
