Written by Crispin Aranda
Posted on May 14, 2013
US immigration laws set the basis for refusing visa applications. On the other hand, US laws also provide ways by which a person may request for forgiveness for having committed fraud, or having overstayed in the US or if the petitioner has passed away before the visa interview date.
Free Assessment for Family-based Petitions Before Interview Date
After years of waiting, the most anticipated day is your immigrant visa interview schedule. It would be sad to have a visa refusal for reasons that you could have remedy for.
When you are before a US Consular officer for the immigrant visa interview based on a petition by a spouse, parent, son, daughter, brother or sister all the information the consul knows about you is based on the information on the petition forms and the documents submitted with the National Visa Center which includes the DS 230 Immigrant Visa Application Form; the I-864 Affidavit of Support (by the petitioner), your NBI clearance, birth, marriage, or death records from the National Statistics Office and proof of payment of the visa fees.
Factors for Visa Refusal and How to Overcome Them
Under current US immigration laws your visa application could be refused based on health reasons; criminal and national security charges; public charge, lack of proof of relationship to petitioner; fraud or misrepresentation, previous visa applications and stay in the US as well as the immigration status, source of income of the petitioner – or if the petitioner has passed away.
As part of our immigrant advocacy, we are providing a free pre-interview status check of your Family-based petition. All you have to do is complete the online form (click here). We shall provide you with the updated procedures and list of documents to prepare so that you would be able to answer the questions during the visa interview. We could also get you ready for the question and answers that would come up on your interview with the US consul.
Basis for Refusing your Immigrant Visa Application
The basis for refusing a US immigrant visa application (Family-sponsored or Employment-based) is found under Section 212(a) of the Immigration and Nationality Act.
(1) Health-related grounds.- applicant determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance such as TB, sexually transmitted diseases.
(2) Criminal and related grounds including charges and/or conviction of certain crimes including use of controlled substance or drug abuse related.
(3) Security and related grounds related to terrorism or national security threats to the US
(4) Public charge – Generally a visa applicant who cannot provide a properly completed I-864 Affidavit of Support, evidence of income of the petitioner/sponsor and any joint or co-sponsor if the petitioner has insufficient or no income at all. This ineligibility may be overcome if the alien can provide evidence that based on (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills, he or she would not be a public charge.
(5) Labor certification.- A visa applicant sponsored by a US employer but does not have the appropriate labor certification to establish that there are no US workers able, willing and eligible for the job being offered to the visa applicant.-
(6) Illegal entrants and immigration violators - those who entered the US without being properly inspected at a US port of entry such as using fictitious name, assumed identity or having crossed the border either from Canada or Mexico. The most common violation is willful or misrepresentation of facts whether the misrepresentation was just an attempt to obtain a visa, or benefit including denying or not disclosing a previous visa refusal or previous stay in the US.
(7) Documentation requirements.-Immigrant visa applicants who must provide additional documents to establish eligibility for the visa category being applied for. For example, an F2B applicant who is already married (even if he or she has been separated for years) is not eligible for the F2B visa category since this category is for over 21, unmarried son or daughter of a green card holder.
(8) Persons permanently ineligible for US citizenship such as draft evaders
(9) Certain aliens previously removed, deported, or denied admission at a US port of entry (subjected to airport-to-airport proceedings) or has overstayed in the US for 180 days or more even if the applicant voluntarily left the US or was not deported with US government expense, unless a specified time has passed that would allow the alien to apply again. The bar could be anywhere from 3 to 20 years depending on the bar. A refusal based on misrepresentation or marriage fraud is permanent.
(10) Miscellaneous reasons including discovering that the visa applicant is a polygamist, charges related to child abduction/kidnapping.
Inconsistent information, incomplete application forms are basis for refusing your immigrant visa application.
The petitioner’s immigration status, place of permanent residency or domicile, having dual citizenship would be a basis for administrative review and/or visa refusal.
If you have a case that would appear on NBI records, a letter of explanation would be required together with court documents to prove that you remain eligible for the issuance of the visa despite the existence of charges lodged against you on record with the NBI or with the Courts.
Medical conditions could be waived: most common of which are TB, hepatitis, STDs, etc. Knowing what how to address the issues before the immigrant visa interview is very important.
Relationship to a dependent for example, if you are listed on your son or daughter’s birth certificate as the father or mother but you are not the biological parent, claiming a parent-child relationship could lead to charges of fraud and result in permanent bar. If you have sent the birth certificate to the National Visa Center then you already have attempted to claim a genuine biological relationship. This could be a reason to permanently disqualify you from getting any US visa unless you provide an acceptable reason why such a claim was made.
Previous visa applications that are not disclosed (tourist, student, work, crew) or previous stays in the US and being subjected to immigration or deportation proceedings are vital information. Knowing the relief or options available to you and how to submit the documents to establish your continuing eligibility for the family-based immigrant visa is crucial.
If the petitioner died or passed away, taking the chance of not informing the US consul or the National Visa Center could also lead to fraud and misrepresentation, resulting in a permanent bar as well. You could still pursue your immigrant visa application and request that the petition be kept alive despite the death of the petitioner. Current US laws allow you to make this request. Know what preparation is needed before the interview date.
To get a free pre-interview status check of your petition, you may complete the online form - HAPI (Help in Assessment Prior to Interview) above . We shall provide the updated procedures and list of documents to prepare so that you would be able to answer the questions during the visa interview. The way to overcome a visa refusal will accompany the assessment.
Know the ways to enhance your visa approval instead of letting the years of waiting go to waste.
Got a question? Let us know - we're here to help.
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