Waivers / Overcoming Visa Denials

ContentsWhat Is LegalNet?What is the Scope of Questions That LegalNet Reviews?Processing TimesConcluding Thoughts  If your visa is denied, you may be confused and frustrated. And consular officers may be unwilling or unable to properly explain the grounds for refusal and your options for overcoming the refusal. There is no right to appeal a visa refusal.…

A jury has convicted a Southern California couple of running a business that helped pregnant Chinese women travel to the United States without revealing their intentions to give birth to babies who would automatically have American citizenship, as reported by the Associated Press on Sept. 14. Michael Liu and Phoebe Dong were found guilty of…

Since May 31, 2019, the U.S. State Department has asked social media-related questions on nonimmigrant and immigrant visa application forms.

This article summarizes the U.S. government's visa sanctions targeting specific Chinese individuals, companies, and institutions.

The President has issued a May 29, 2020, Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China.The proclamation appears to be counter-productive, a distraction from real measures needed to fight Beijing's theft of sensitive technologies, and an attempt to boost Trump's electoral odds by stoking…

The U.S. Department of Homeland Security (DHS) regularly uses fake social media profiles to collect information on noncitizens, according to an article in Law360 (subscription required), based on internal documents obtained by the Brennan Center for Justice. The documents were released in reply to the Center’s 2020 Freedom of Information Act suit. The documents show…

Did you think the Cold War was over? The U.S. Immigration and Nationality Act still makes inadmissible (i.e., ineligible) for permanent residence and citizenship certain persons who have been members of or affiliated with the Communist Party. The Chinese Communist Party (CCP) has some 80 million members, so this ground of ineligibility is a key…

A fugitive Chinese businessman was sentenced Friday to one year in prison after he was convicted on two counts of visa fraud for hiding a Marshall Islands passport he held under another name. See Carolina Bolado, Wanted Chinese Businessman Gets One Year for Visa Fraud, Law360 (Oct. 14, 2022) (subscription only). U.S. District Judge Darrin P. Gayles sentenced SHI Jianxiang Shi to 12 months…

A Texas federal judge has found to be true allegations of visa fraud by ZTE, a partially state-owned Chinese telecommunications and information technology company. Judge Ed Kindeade’s findings were made in the context of a hearing on whether to revoke ZTE’s probation for violating Iran sanctions. ZTE was on probation after pleading guilty in 2017…

A federal judge has given preliminary approval to a settlement between U.S. Immigration and Customs Enforcement (ICE) and foreign nationals who enrolled in University of Northern New Jersey, a fake school created by the agency as part of an immigration sting. The proposed settlement would resolve claims that ICE violated the due process protections of the…

Effective Oct. 1, 2021, the Centers for Disease Control (CDC) requires applicants to receive a full COVID-19 vaccine series prior to being issued an immigrant visa.

On May 14, President Biden revoked former President Trump’s proclamation requiring that immigrant visa applicants buy health insurance. Proclamation 9945 had never gone into effect because it was tied up in litigation. Plaintiffs in Doe vs. Trump that the proclamation was an unlawful exercise of power reserved for Congress. It would have required immigrant visa…

Trump’s USCIS public charge rule is dead, and his State Department public charge rule is at death’s door. Here’s the latest announcement, dated Mar. 26, 2021, from the State Department: On July 29, 2020, the United States District Court for the Southern District of New York enjoined the Department of State from “enforcing, applying, implementing,…

DHS has released the below statement that it will no longer pursue appellate review of judicial decisions invalidating or enjoining the Trump administration’s 2019 public charge rule. Once the judicial invalidation of the 2019 rule becomes final, the 1999 interim field guidance on public charge will apply. This is fantastic news, but it does not…

On Jan. 20, his first day in office, President Biden issued a Presidential Proclamation revoking the travel ban on Muslim-majority countries first put into place by President Trump in 2017. Biden’s proclamation orders the State Department to resume visa processing and to put into place a plan for (a) adjudicating visa applications by persons who…

If a consular officer denies a visa application, there is no appeal. Still, there may be several ways to challenge a visa denial, such as requesting reconsideration, supervisorial review, or an advisory opinion, or resubmitting the application. If a visa denial cannot be overcome, it may be possible to request a "waiver." A waiver is…

On Dec. 2, the State Department issued new restrictions on B1/B2 (visitor for business or leisure) visas for members of the Chinese Communist Party (CCP) and their families. While other Chinese citizens may obtain multiple-entry visas valid for entry within 10 years, under a 2014 reciprocal agreement between Presidents Obama and Xi Jinping, CCP members…

During the Trump administration, immigration lawyers have become accustomed to “shock by memo,” meaning backdoor rules announced by government memo with no prior notice, typically on a Friday afternoon, which leave us scrambling to help clients understand how the new rules may apply to applications filed months or years ago under a different memo.[1] On…

Visa bans based on Communist Party membership–like any bans based on ideology or associaiton–are an unnecessary, and most damaging, legacy of the McCarthy era.

For the uninitiated, “administrative processing” (AP) is State Department-speak for a temporary visa refusal pending further investigation of a visa application. (9 FAM Appendix E, 404). The applicant typically learns of the temporary refusal when, at the conclusion of the interview, the consular officer issues a written notice stating that under section 221(g) of the Immigration…

The State Department has published a Jan. 24 rule taking aim at birth tourism. The rule prohibits issuance of a B-2 (visitor for pleasure) visa if the applicant’s primary purpose for traveling to the U.S. is to gain citizenship for a child by giving birth in the U.S. The new rule will not prohibit pregnant…

The CDC has announced: The Centers for Disease Control and Prevention (CDC) and the Department of Homeland Security’s Customs and Border Protection (CBP) will implement enhanced health screenings to detect ill travelers traveling to the United States on direct or connecting flights from Wuhan, China. This activity is in response to an outbreak in China…

An individual who an immigration officer or consular officer has determined is inadmissible to the United States as an immigrant or to adjust status in the United States, and certain nonimmigrant applicants who are deemed inadmissible, must file the Form I-601, Application for Waiver of Grounds of Inadmissibility, to seek a waiver of certain grounds…

To be issued a visa and admitted to the U.S. at a port of entry, a foreign national must generally not fall within a list of classes of persons who are to be prohibited entry to the U.S. This list is known as the “grounds of inadmissibility.”

This is my first impressions of President Trump’s Oct. 4 proclamation barring issuance of immigrant visas to applicants with no “approved” health insurance.

On October 8, the U.S. State Department announced visa restrictions on Chinese government and Communist Party officials responsible for, or complicit in, repression of Uighurs and other Muslim minority groups in the Xinjiang region.

On August 14, 2019, the U.S. Department of Homeland Security (DHS) published a final rule governing the public charge grounds of inadmissibility, found at section 212(a)(4) of the Immigration and Nationality Act (INA). Unless litigation halts implementation of the rule, it will go into effect after 60 days, on October 15, 2019. Here is a…

If you are having problems with your immigration case, a member of the U.S. Congress may be willing to inquire with a Federal immigration agency, such as U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) on your behalf.

The below July 26, 2019, press release is from U.S. Immigration and Customs Enforcement. Huang Weiyun has been indicted on allegations that, among other things, she sold letters falsely verifying that F-1 students were eligible for optional practical training (OPT) based on employment with her company, Findream LLC.

Here’s a reader’s question: I am a U.S. citizen and have been living outside the U.S. for almost four years for study. I got married a year ago and would like to apply for my husband to immigrate. My question is, can I apply for him while I am outside the U.S.? I have not finished…

May 3, 2019 Update: The U.S. District Court for the Middle District of North Carolina today issued a nationwide preliminary injunction that temporarily prevents the Department of Homeland Security (DHS) from enforcing the U.S. Citizenship and Immigration Services (USCIS) August 8, 2018 policy memo that sought to change how days of unlawful presence are counted…

U.S. Citizenship and Immigration Services (USCIS) reminded its officers this week that violation of federal controlled substance law, including for marijuana, is still a basis for denying naturalization. This is true, even if such activity is not unlawful under applicable state or foreign law.

Over the weekend, the Trump administration took steps to radically transform a little-known provision of immigration law that could have an outsized impact on legal immigration. In proposed regulations posted on Saturday, the Department of Homeland Security (DHS) indicated that it would redefine the legal term “public charge” to block green cards for low-income immigrants…

On September 22, 2018, the Trump administration announced the upcoming publication of a proposed rule that if implemented as written, would prevent immigrants from securing lawful permanent residence and remaining with their families in the United States, simply because at any time in the past, they received some type of basic health care support, nutrition…

A new Congressional report asserts that Chinese Students and Scholars Associations (CSSAs) at U.S. colleges appear to be directly subordinate to and receive political direction from the Chinese Embassy and consulates. This report raises concerns: could the U.S. government deny green cards to CSSA members? The report, entitled China’s Overseas United Front Work: Background and…

Today, the Supreme Court upheld the third, reengineered version of President Trump’s travel ban by a vote of 5 to 4. Anastasia Tonello, President of the American Immigration Lawyers Association (AILA) issued the following statement:

A State Department official has spoken on background to the Associated Press, saying that more Chinese applying for F-1 visas as graduate students in fields related to science and technology will need “special clearance from multiple U.S. agencies” and that such clearances are “expected to take months for each visa application.” Other nonimmigrant visa applicants…

A new National Vetting Center is being established pursuant to National Security Presidential Memorandum 9, signed by President Trump on February 6. The Center will coordinate the way agencies use biographic, biometric, and other data used to vet applicants for visas, admission to the United States, and immigration benefits, and in enforcement and removal (deportation)…

An immigrant visa applicant sporting a tattoo may be questioned about it. The presence of tattoos is noted during the required medical exam. This may lead a consular officer to suspect the applicant has gang affiliations or has abused drugs.

If your visa is denied, you may be confused and frustrated. And consular officers may be unwilling or unable to properly explain the grounds for refusal and your options for overcoming the refusal. How can an attorney help?

U.S. Customs and Border Protection has a handout on Inspection of Electronic Devices, available here.  There is a section on “Why You May Be Chosen for an Inspection,” but it omits any mention of CBP’s legal position: that a person may be chosen for any reason or no reason at all: no reasonable suspicion is required.…

U.S. Customs and Border Protection (CBP) has published a Feb. 21, 2017, notice of its intent to collect Chinese travelers’ social media account information. There is a 60-day window for public comment. Tell CBP this is a bad idea. 2017-04-12 Update: The American Chamber of Commerce-China has submitted a comment to CBP explaining why they oppose the…

U.S. Secretary of State Rex Tillerson sent four cables to consular officers between Mar. 10 and 17 with preliminary instructions for stricter vetting of U.S. visa applicants. The cables emphasize that “all visa decisions are national security decisions” and that additional screening may “may cause interview appointment backlogs to rise.”

The Electronic Frontier Foundation has put together a quick pocket guide with a breakdown of your digital rights at the U.S. border.

President Trump has signed a revised Executive Order on “Protecting the Nation from Foreign Terrorist Entry into the United States.” It goes into effect March 16. The ban fails to address the original version’s flaws and its thinly veiled scapegoating of Muslims and refugees.

The Latest Enforcement and interpretation of President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals” are evolving rapidly, so check back here for updates. 2017-02-16: The Trump administration plans to unveil a revised EO on immigration next week and rescind the president’s initial travel ban, which has been entrenched…

A leaked, unsigned copy of President Trump’s Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals. The order takes the following steps, among others:

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit is perhaps the most-cited legal scholar of the twentieth century. His reputations for brilliance and for rudeness are both on display in his concurring opinion in Arias v. Lynch (7th Cir. 2016).

A person found ineligible for a visa may nonetheless qualify one of the various “waivers” allowing visa issuance. Often, issuance of a waiver requires that the applicant prove a qualifying relative will experience “extreme hardship” if the waiver is not granted.

Since our firm’s offices are in China, we are often asked by lawyers in the U.S. to work as local counsel for U.S. visa applications at the U.S. Consulates in Beijing, Guangzhou, Shanghai, Chengdu, and Shenyang. We make it our business to know each consulate’s policies, practices, and procedures. Here are the basic tips we give…

In a first-of-its-kind sting operation, U.S. Immigration and Customs Enforcement (ICE) established a sham school in September 2013. The University of Northern New Jersey offered no classes or instructors. But for a price it offered to shady recruiters an opportunity to obtain fraudulent student visas for foreign customers.

The Department of Homeland Security (DHS) plans to intensify its investigation of visa applicants’ social media. Our law firm advises clients to exercise caution using social media.

Chinese birth tourism agencies are commonly misunderstood as taking advantage of a “loopholes” in U.S. law. But they should be viewed as criminal smuggling operations.

Federal authorities have arrested Jason Shiao (aka Xiao Zhengyi) and his daughter, Lynn Leung, on charges of conspiring to commit visa fraud by arranging phony marriages between Chinese citizens seeking legal residency and American spouses.

The U.S. Supreme court has just ruled, in Kerry v. Din, that a U.S. citizen wasn’t entitled to judicial review of her husband’s visa denial on terrorism grounds. The decision leaves intact the consular nonreviewability doctrine but stops short of definitively barring future challenges by U.S. citizens to relatives’ visa denials. Facts and Procedural History Din, a U.S. citizen,…

This three-part series looks at shady Chinese agencies promoting U.S. birth tourism. Part 1 is an English translation of an investigative report about these agencies by Yicai, a Chinese financial news website. It focuses on the motivations of the intended parents from Mainland China. Part 2 discusses Hong Kong’s struggle with the problem. A crackdown by…

This series looks at shady Chinese agencies promoting U.S. birth tourism:

This series looks at shady Chinese agencies promoting U.S. birth tourism:

The United States and Hong Kong encourage medical tourism. Patients are drawn by the high standard of care, and hospitals find this business to be disproportionately profitable. But both are wary of “birth tourism,” i.e., women entering as visitors with the intent to give birth.

The Associated Press reports that Lian Yang of Washington state has plead guilty in federal court to conspiring to violate the Arms Export Control Act. He allegedly tried to illegally export 300 radiation-hardened semiconductors used in military satellites. The government claims Yang intended to provide them to China Space Technology Co.’s space program or to design…

Father’s Day is approaching in America. A chance to celebrate dad’s ability to answer any question thus: “I’ll tell you why. Because I said so. That’s why.” The U.S. Consulates in China are equally cagey. Most persons denied nonimmigrant visas are given a form letter saying that the visa was denied under section 214(b) of…

The U.S. Department of State has published an updated list of the types of skills that make a J-1 exchange visitor subject to the two-year foreign residence requirement. At the request of the PRC Ministry of Foreign Affairs, this list subjects almost all Chinese J-1 visa holders to the foreign residence requirement.

For all those engineers and scientists with peeves about Visas Mantis Security Advisory Opinions (SAOs) and other U.S. visa policies, here’s a blast from the past. Albert Einstein is the world’s most famous theoretical physicist. He entered the U.S. in 1933 and chose to settle here after the Nazi party came to power in his native…

Hong Skains, age 37, is a green card holder from China. She registered and voted in the 2004 federal elections in Colorado, apparently unaware that only citizens are eligible to vote.

Wayne England, a Tennessee alpaca farmer, was duped into signing an invitation letter used by two Chinese men to apply for U.S. visas. The men entered the U.S. with the visas and then disappeared off the radar screen. I was interested enough in the original story by Forbes that I decided to interview England to…

“Marketplace,” a business show on public radio, has picked up on the security advisory opinion (SAO) story. A reporter in New Delhi met with several H-1B workers who have been stuck abroad for up to 4 months waiting for SAO checks.

I previously reviewed a September 2008 USCIS report, entitled H-1B Benefit Fraud & Compliance Assessment, finding that small companies are more likely than large companies to violate the rules related to employing workers with H-1B visas. In January 2009, I reported that USCIS had implemented the report’s recommendations by closely scrutinizing small companies filing H-1B petitions,…

As I mentioned in yesterday’s post, nonimmigrant visa applicants are now waiting for 12-14 weeks for Visas Mantis security advisory opinions (SAOs). This SAO is a security check to ensure that science and technology students and professionals seeking U.S. visas aren’t likely to try to illegally export U.S. technologies. These waits are terribly disruptive to business and…

Visas Mantis SAO processing times have risen to 12-14 weeks, causing disruptions in the lives of travelers planning to enter the U.S. on nonimmigrant visas. For example, many students and temporary workers who returned home for vacation during Christmas 2008 are still awaiting their visas to return to school and work.

  The U.S. State Department has announced it is searching for Philip Ming Wong, a fugitive who has been indicted for his role in a visa fraud scheme. “Operation Shell Games” Targeted Brokers Who Supplied Chinese Citizens with False Documents and Fraudulent Visa Applications  United States Attorney Joseph P. Russoniello and Diplomatic Security Service (DSS)…

According to the U.S. Embassy in Beijing, “[t]he average processing time for [security advisory opinion] clearances has increased to 6-7 weeks.” The increased processing time will apparently affect U.S. Consulates worldwide because it is due to a shortage of personnel in Washington, DC.

The importance of effective Mantis security advisory opinions (SAOs) is highlighted by a recent story by the Associated Press concluding that illegal weapons export continues to be a serious problem for the United States: