AILA – DC Chapter 2012
Fall Conference
Nonimmigrant Visas & Consular
Processing
Sheela Murthy, Esq. - Panel Moderator/ Speaker
Evangeline Howard, Esq. (Department of State)
Jan Pederson, Esq. – Speaker
Leslie Dellon, Esq. - Speaker
H1B Criteria
• Nonimmigrant intent is NOT required
• Individual must be employed in a “specialty
occupation,” which is a position that requires:
– The theoretical and practical application of a body of
specialized knowledge, and
– A four-year college/university degree or foreign
equivalent or equivalent experience in the specialty
field (“3 for 1” rule).
• H1B Petition also requires a certified Labor
Condition Application (LCA) obtained from the
DOL.
H1B CAP
• Quota (“H1B Cap”)
– Fiscal year quota of 65,000: Applies to all “new” H1B petitions.
– Exemptions for institutions of higher education, not-for-profit
organizations affiliated with institutions of higher education, and
government research organizations as well as certain recipients of
§212(e) waivers.
– 6,500 set aside for Chilean/Singaporean H1B1.
– 20,000 additional for graduates of U.S. master’s (or higher) degree
programs.
– USCIS accepts applications each year beginning April 1st.
– Employment may not commence before October 1st of that fiscal
year.
H1B Professionals—Admission
and Stay
• Six-year limit, in up to
three-year increments,
with some exceptions.
Extension Strategies Beyond 6th Year
• H1B extensions under AC21:
– PERM/ I-140 filed at least 365 days Earlier
– I-140 approved and the Priority Date is not Current
• Recapture Time
• Switch to a dependent status (H-4 or L-2)
• Possibly rely on spouse’s GC case as a basis to
extend H1B status but risk that it may not work.
• Reset: Leave the U.S. for 1 year and reenter subject
to the cap again for another 6 years
H1B Issues:
Establishing Control & the Employment
Relationship
• Jan. 2010 Neufeld Memo establishing
factors to weigh.
• H1B and H-4 221(g) visa refusals based on
Neufeld Memo factors.
• Impact on EVC Business Model in the IT
Industry.
Benching H1B Employees
• Employer is generally required to pay H1B
employees for nonproductive time at the full-time
rate of the DOL's prevailing wage.
• Even if employer terminates H1B employee,
employer may be liable for wages if proper
procedures are not followed.
– Note that if employee is terminated, employer
is generally obligated to pay for the reasonable
costs of return transportation of the FN abroad.
Changing Employers While on H1B
• Person in valid H1B status is generally permitted
to change employers upon the filing of new H1B
petition, so long as certain requirements have been
met.
• If H1B employee travels abroad after change of
employer, he/she typically may reenter in H1B
status with existing visa (assuming it is
unexpired.)
Additional H1B Issues
• Risk of travel when an H1B extension
petition is filed with the same employer
• Risk of travel when H1B change of
employer is filed
• Memo on using H1B receipt notice has its
limitations/ risks
• Risk of visa denial when applying abroad
(discussed below)
Additional H1B Issues
• Complex H1B issues with consulting
companies
• Change of work location
– Requirement to file an LCA Amendment
– Safer to File an amended petition
• DOL Prevailing Wage Issues
• Employer/ Employee Relationship and
Right of Control
B-1 in lieu of H1B
• Individuals may apply for a B1 or B1/B2 visa to perform H-1B
work in the United States as long as they fulfill the following
criteria:
– Hold the equivalent of a U.S. bachelor's degree
– Plan to perform H-1B-caliber work or training
– Will be paid only by their foreign employer, except
reimbursement of incidental travel costs such as housing and
per diem. The employee must not receive any salary from a
U.S. source. See 9 FAM 41.31 N11
– The task can be accomplished in a short period of time.
• Still need to show strong ties to foreign country under INA §
214(b)
L-1Classification
•
Qualifying relationship between foreign entity and U.S. petitioner.
– Parent/subsidiary: At least 51% ownership (direct or indirect) or 50% with
control or 50/50 JV with equal control or less than 50% and control.
– Affiliates: Owned/controlled by same parent or person or by same group
of people in approximately same proportion.
– Branch: operating division or office of same entity, different location.
– Special provision for accounting partnerships operating internationally.
• Are/will be “doing business” (regular, systematic, and continuous provision of
goods and/or services) U.S. and at least 1 country abroad.
• Foreign national employed F/T abroad by qualifying foreign entity for 1
continuous year out of preceding 3 years as managerial, executive or
specialized knowledge.
• Proposed job in U.S. must be managerial, executive or specialized
knowledge. Can be transferred in a different category than worked abroad.
See 8 C.F.R. § 214.2(l)(1)
L-1A Manager
• A “manager” primarily:
– Manages the organization or a smaller unit or a
function;
– Supervises and controls the work of other supervisory,
professional, or managerial employees, or manages an
essential function;
– Has authority to hire/fire and other personnel actions or
to recommend such actions; or if no employees directly
supervised, functions at a senior level; and
– Exercises discretion over the day-to-day operations of
the activity or function for which the employee has
authority. A first-line supervisor is not considered to be
a manager. See 8 C.F.R. § 214.2(l)(1)(ii)(B).
L-1A Manager (con’t)
• Tips for “People Manager”
– Organizational chart for the foreign entity showing manager’s
seniority and chart listing manager and names/titles of
people directly and indirectly supervised. Similar chart for
the U.S. entity with the foreign national in the proposed job.
– Establish that the people supervised/to be supervised are
professionals. Describe each person’s job duties. Include
explanation of the “chain of command” (to whom they report
and who reports to them) and a resume with education and
experience. (Can include copy of degree, when relevant.)
– USCIS does not consider “hands-on” activities to be
managerial. Description of manager’s duties with
percentages of time spent is usually persuasive.
L-1A Manager (con’t)
• Is the “Functional Manager” a viable option?
• Low probability of success in small business.
• Best chance for success: Establish that the
function is “essential” by documenting the dollar
value of the function to the company.
• Provide organizational charts for the foreign and
U.S. entities showing the foreign national’s
seniority. Include job titles and job duties of “junior”
personnel to establish the foreign national’s
seniority and to demonstrate that others will carry
out the work while he or she manages the function.
L-1A Executive
• An “executive” primarily:
– Directs the management of the organization or smaller
unit or a function;
– Establishes goals and policies;
– Exercises wide latitude in discretionary decision-making;
and
– Receives only general supervision or direction from
higher level executives, the board of directors, or
stockholders. See 8 C.F.R. § 214.2(l)(1)(ii)(C).
• For other than the “top” position (such as CEO), these
duties can be difficult to document to USCIS’ satisfaction. If
possible, present job as managerial rather than executive.
L-1B Specialized Knowledge
• L-1B: 5 years maximum. L-1A: 7 years maximum.
• “Specialized knowledge:”
– Special knowledge of the petitioning organization’s
product, service, research, equipment, techniques,
management or other interests and its application in
international markets, or
– An advanced level of knowledge or expertise in the
organization’s processes and procedures.
See 8 C.F.R. § 214.2(l)(1)(ii)(D).
• If placed at non-L organization site, L organization must
control work and the work must require specialized
knowledge of the L organization’s products or services.
L-1 Specialized Knowledge
USCIS Policy v. Practice
• USCIS Policy in Adjudicator’s Field Manual
– Knowledge not generally found in the
particular industry. Not required to be
proprietary or unique.
– Knowledge of company product must be
“noteworthy or uncommon.”
– Knowledge of company processes/procedures
must be “advanced.” Does not need to be
narrowly held within the company.
AFM ch. 32.6(e): Source is Puleo Memo (March 9, 1994)
(available at AILA InfoNet Doc. No. 01052171 (May 21, 2001).
USCIS Policy v. Practice (con’t)
• USCIS Misinterpretations Resulting in Denials
– Knowledge must be narrowly held.
– Knowledge must be held by “key” (more
senior/more experienced) employees.
– Knowledge takes several years to acquire.
• Query: Should you be pragmatic and
address the incorrect standards or “stick”
with the AFM, which USCIS is required to
follow as USCIS policy?
TN Classification
• For Canadian or Mexican citizens.
• Eligible professional occupations specified by
NAFTA. 8 C.F.R. § 214.6(c), which contains
NAFTA Appendix 1603.D.1 (Annotated).
• Must meet minimum education requirement or
alternative credentials specified for the
occupation and have license, if required.
• U.S. employer or Canadian providing prearranged services to U.S. entity while employed
by Canadian employer or self-employed in
Canada. (The TN cannot own/control the U.S.
entity.)
Comparison of
TN
H-1B
• Canadian and Mexican
citizens.
• Any citizenship.
• No numerical limit.
• Fiscal year numerical limit
unless “cap exempt.”
• No Labor Condition
Application (LCA).
• LCA and LCA-related
obligations.
• Canadians can apply at
Class A POEs, U.S.
preclearance or U.S.
airports w. int’l flights.
• USCIS petition approval
required for all.
TN
Comparison of
H-1B (con’t)
• Only the occupations
specified in NAFTA
Appendix 1603 D.1.
• Any occupation for which
a bachelor’s degree in a
specific field is the entry
level.
• If degree required and
equivalent experience
not specified, cannot
substitute experience.
• Can establish degree
equivalency through
combination of
education/experience or
experience alone. 3
years experience = 1
year college.
TN
Comparison of
H-1B (con’t)
• Admitted for up to 3 years, no
maximum.
• Admitted for up to 3 years, 6
year maximum (unless
“AC21” eligible.)
• No dual intent; must maintain
foreign residence. Filed or
approved IV petition (I-140)
not an automatic bar, but
factor in determining IV intent.
• Dual intent; no foreign
residence required. Can keep
H-1B status while green card
application (I-485) pending.
Tips for TN Approval
• Identify the job by the TN occupation. Describe employer’s
job title as an “internal” title.
– Example: TN occupation is Computer Systems Analyst.
– Employer’s internal job title is Applications Analyst.
•
•
Identify NAFTA requirements. Describe how the foreign
national meets them. Document with diplomas/
transcripts and/or employment verification letters.
Be prepared for CBP claims that a foreign national
cannot be classified as a TN if the job involves sales or
supervision since those occupations are “not on the list,”
such as a Software Engineer who supports the Sales
Dep’t or a Sr. Chemist who can hire/fire other chemists.
E-1 and E-2
Treaty Traders and Investors
• Visas based on treaties or
investment.
• Nationals of countries
which lack such a treaty
with the U.S. (e.g. India)
are ineligible for this
classification.
L-1 Visa
H-1B
Maximum of 7 years (L-1A) Maximun of six year limit,
and 5 years (L-1B)
which can be waived by
filing I-140 or PERM at least
365 days before six year
anniversary
No involvement with
Department of Labor
No degree requirement
Time Limits Cannot Be
Waived
L-1A can be converted to
Green Card in many
cases. No PERM needed
E-1/E-2
Can bypass USCIS and
file directly with consular
post
Must obtain Labor
No involvement with
Condition Application and USCIS or DOL required
perhaps Prevailing Wage
Determination from DOL
Degree or equivalent work No degree requirement
experience usually (models
don’t need degree)
Time limits may be waived
No conversion to green
card. Requires separate
filing
Must first register company
and then apply at many,
but not all posts
No time limit
No conversion green card,
unless the E status is a
function L intracompany
transferee
L-1 Visa
Spouse Can Work
L-1 Visa Streamlined if
Blanket L petition in effect
H-1B
E-1/E-2
Spouse Cannot Work
Spouse Can Work
If employer cap exempt, not
counted against the cap
Need USCIS Petition
Need USCIS Petition
Approval (unless blanket) Approval
Can Premium Process at
USCIS
Dual Intent Applies
Can premium process at
USCIS
Dual Intent Applies
Unlimited number of visas Limited to 85,000 (20,000
reserved for U.S. advanced
degree)
Do not need USCIS
approval, but can file with
USCIS for EOS or COS
Can premium process at
USCIS
Diluted dual intent—See 9
FAM 41.51 N15
Unlimited number of visas
Canadian citizens may file
at the border and instant
decision
Must be treaty with country
of nationality or law
Beware the UK treaty; must
be inhabitant of the UK
F-1 Students
• A foreign national who is a
bona fide student qualified to
pursue a full course of study
and who seeks to enter the
U.S. temporarily to study at
an established college,
university, seminary,
conservatory, academic high
school, elementary school,
language training program or
other academic institution.
Maintenance of F-1 Status
• Full-time study
• Normal progress towards completion of
degree
• No unauthorized employment
Applying for F-1 Visa /
Changing Status to F-1
•
•
•
•
I-20
Financial ability
SEVIS I-901 fee
English language proficiency
F-1 Students may work in certain
circumstances
F-1 Employment
• Curricular Practical Training (CPT)
• Optional Practical Training (OPT)
• On-campus employment
F-1 Special Issues
• Transition to H-1B (Cap Gap)
• Travel
• Failure to maintain status and
reinstatement
• Out of Status vs. Unlawful Presence
Practical Training
Optional Practical
Training
Must be authorized by USCIS;
1 year full-time enrollment required;
Directly related to course of study;
Curricular Practical
Training
Authorized by DSO;
1year full-time enrollment required;
Employment-specific;
One-year increments;
Part-time or full-time;
Integral part of established curriculum;
1-year full-time = no OPT.
Full-time study required.
Pre-completion OPT
20 hours when school in session while
full-time study;
Full-time during school breaks and
after completion of requirements while
working on thesis or dissertation;
No offer of employment required;
Post-completion OPT
STEM OPT
90 days of unemployment limit;
No offer of employment required;
Allowed after completion of study
while working on thesis or dissertation.
120 cumulative limit on
unemployment;
Offer of employment required from Everify employer;
May work full time; is not subject to
the unemployment provisions, and
may receive a program extension;
May not apply for the STEM
extension from a period of precompletion OPT;
Would not be eligible for cap-gap
extension of OPT.
May work full time.
Would be eligible for the cap-gap
extension.
May apply for the STEM extension
if otherwise eligible.
Would be subject to the
unemployment provisions.
Would be unable to receive an
extension of his or her program.
O-1 Extraordinary Ability
and Achievement
• O-1 status is available
to foreign nationals
with extraordinary
ability
• No numerical limit or
prevailing wage
requirement.
• Eligible for initial 3
years with infinite 1
year extensions.
O-1 Extraordinary Ability
and Achievement
• Three different standards depending on area
of expertise:
– Extraordinary ability in science, education,
business or athletics, or
– Extraordinary achievement in motion pictures
and television, or
– Extraordinary ability in the arts.
Real-world Examples of
Successful O-1 Applicants:
Lighting Programmer
• Internationally renowned for creating artistic and creative
light shows for concerts and major events.
• Had previously been responsible for overseeing concert
light shows for numerous major rock bands (e.g. Rolling
Stones, Coldplay.)
• Served as Lighting Programmer for Olympics ceremonies
viewed by more than 2 billion people; his work received
widespread praise for its innovative design and spectacular
artistic achievements.
Real-world Examples of
Successful O-1 Applicants:
Soccer Coach
• Had received sustained international recognition and
acclaim as a leading expert in the field of Soccer,
specifically as a player, top level manager, and a coach.
– Note that petition must overcome Lee v. Ziglar, which found
that extraordinary ability as a player does not necessarily
mean individual also qualifies for O-1 as coach.
• His teams had won 4 National Championships in 4 years.
• Had worked closely with the developmental process of
young European players who progressed to become regular
members of the first team squad.
• Articles written about him in numerous national and
international publications.
Real-world Examples of
Successful O-1 Applicants:
Pathologist
• Had received substantial amounts of funding for cancer
research from various prominent organizations.
• First author of many articles in peer-reviewed journals; his
work had been cited more than 800 times.
• Had been appointed to numerous prominent positions,
including Director of a nationally and internationally
renowned cancer center that is funded by the National
Institutes of Health (NIH).
• Credited with making discoveries which are expected to
lead to groundbreaking treatments for prostate cancer.
CONSULAR ISSUES—USCIS
SAID “YES”—NOW WHAT DO I
DO? HOW TO PREPARE FOR
THAT ONE SHOT
REPRESENTATION OF CLIENTS
IN CONSULAR PROCESSING
• Consular processing is separate from petition
processing. Make sure you are retained to
represent client in process.
• Do your homework on best place to apply.
Will usually be Canada or Mexico, if eligible
PREPARING CLIENT FOR
CONSULAR INTERVIEW
• When you accept case, analyze entire case
from beginning to end. Determine possible
glitches in consular processing and prepare
for them in advance.
• Know your consular post—culture,
personnel and policies.
• Prepare an entire application package with
every conceivable document.
PREPARING CLIENT FOR
CONSULAR INTERVIEW
• Always have at least a Skype interview with the
client to prepare them for interview. Never skip
this step no matter the time zones between you
and client.
• Review the petition and supporting documents, the
visa application and all possible questions with
client in advance.
PREPARING CLIENT FOR
CONSULAR INTERVIEW
•
•
•
Always submit a brief summary of the case and attach an immigration
time line if such will assist the consular officer in understanding the
case.
Always document continuous lawful presence.
SKILLS TESTS. Many consular officers give skills tests in employment
petition cases, so make sure your client speaks to employer shortly
before the interview to discuss the job duties; make sure you review the
job duties in detail and make sure client knows his job duties by heart
and can recite them in his sleep.
– Always consider the terror factor among visa applicants when
interviewed through a bullet proof window by a consular officer
whose decision is crucial to the path their careers/lives will take. In
this environment, even a PhD in computer science may not be able
to turn on a laptop.
– Skills tests are often given to computer professionals, accountants,
engineers, nurses, doctors, and oriental rug repairers. Make sure
to assist your client in obtaining a comfort level in answering these
questions.
PREPARING CLIENT FOR
CONSULAR INTERVIEW
• Make sure client
dresses appropriately.
– No visible tattoos.
– Look the part.
– Students should take
books with them to
read while waiting.
BULLET PROOF YOUR PETITION
• A perfect petition does little to console a client
whose visa is denied.
• Avoid long attorney cover letters with lots of
verbiage in support of a petition.
– If your verbiage is contrary to the client’s
testimony, then visa petition revocation
proceedings may loom
• Verify information in petition with both
employer and foreign national before filing.
BULLET PROOFING AN
INDIAN IT PETITION
• 221(g) refusals common (Chennai, New Delhi,
Mumbai, Kolkata, Hyderabad), especially with
consulting companies.
• Common issues include:
– Right to control (Neufeld Memo factors)
– Specialty occupation (Job requirements, etc.)
• Petition should include letter from end-client,
signed contracts, work orders, etc. when available.
– But we have been successful with cases w/o end client
letters.
STRATEGIES FOR AVOIDING
PETITION RETURNS
• If petition is to be returned to USCIS, short
window between denial and return (i.e. usually
less than two weeks.)
– Attorney can communicate with Consulate to
request reconsideration, etc. But once petition is
returned to USCIS, Consulate is generally
unable to reverse decision
– This option is working less and less frequently
STRATEGIES FOR AVOIDING
PETITION RETURNS
• If petition is returned to KCC, eventually
case will go back to the Service Center for
review.
• Reaffirmation can take up to a year but may
be able to expedite (6-9 months) with
Congressional Inquiry
WORLD SWEEP ON
CONSULAR POSTS
• Dublin—Serious E-2 issues: Denials for “marginality”
based on level of profitability when standard is current or
future potential to make a significant contribution to U.S.
economy. 9 FAM 41.51 N.11.
• Visa Reissuance Policies.
– Worldwide trend is to reissue visas in same category in
many circumstances. Check post Website. Avoids
consular interview.
Border Processing –Mexico
• For Third Country National (TCN) to be eligible
to apply, must have been issued a visa in same
category previously. Does not have to have been
issued in home country.
• Applicants from T-4 and List of 26 countries
cannot apply.
• May renew visas in any category (including Es)
except B visas.
• May need Mexican visa if outside border area.
Border Processing –Mexico
• Eligible TCN’s residing in US
must make visa appointment
online at www.visa-usa.com.mx.
– Website available 24/7.
– In order to use, applicant must
purchase PIN for $10US, payable by
Visa/MC. PIN will expire 10 days
after appt. or 90 days after purchase.
Border Processing –Canada
• Third country NIV Applicants welcome
at all posts—except applicants for E
visas.
• Beware change of status cases.
• Appointments required.
• Application should be made before
current visa expires, if possible, to
permit return to U.S. in the event of a
visa issuance delay.
Border Processing
• Security Checks
– Mantis (technology related). Most
now take less than 30 days. Mantis
checks are now valid for two years
for H, L, and O visas; four years for
F’s and J’s. Change of field, eg,
law to nuclear physics, can result in
new Mantis check.
Border Processing
– Condor (security, terrorism related). Processing
times on Condor clearances have increased
dramatically – 90 days not uncommon.
– Donkey (secondary check if there is a hit in
Condor.) Can take two to three months.
Other Issues
• Iranians can now be issued F, M, and J visas for
two years.
• J visas can only be issued until expiration of
exchange program noted on DS-2019—formerly
could be issued for maximum permitted by
reciprocity schedule.
• E-2s not being renewed because consular officer
decides business is marginal.
• Consular officers readjudicating Labor Condition
Applications
Other Issues
• DOS Memo
– Community colleges, language programs:
all schools should be viewed equally with
respect to visa issuance.
– Memo’s guidance has been incorporated
into Foreign Affairs Manual Notes, 9
FAM 41.61 N. 5. This incorporation
indicates its importance to DOS.
– This is an extremely important memo,
which has clarified the most pressing
issues in student visa issuance.
INTER-AGENCY CONFLICTS:
CBP vs. DOS
• Inconsistent treatment of blanket Ls by CBP
after DOS issuance of 5 year visas.
INTER-AGENCY CONFLICTS:
USCIS vs. DOS
9 FAM 41.53 N2.2 Approved Petition Is Prima Facie
Evidence of Entitlement to H Classification
a. An approved Form I-129, Petition for a Nonimmigrant
Worker …is, in itself, to be considered by you as prima facie
evidence that the requirements for H classification which are
examined in the petition process have been met. You do not
have the authority to question the approval of H petitions
without specific evidence, unavailable to DHS at the time of
petition approval, that the beneficiary may not be entitled to
status….
INTER-AGENCY CONFLICTS:
USCIS vs. DOS
Regulation seems straight forward and innocuous, but how is
it actually applied at the Consulate?
212(d)(3) Nonimmigrant Waiver
• 212(d)(3) waiver can be used to waive
nearly all grounds of inadmissibility when
applying for a nonimmigrant visa.
• Everyone eligible unless ground cannot be
waived
– No need for qualifying relative
– No need for passage of time since
inadmissibility ground arose.
WHAT GROUNDS CANNOT BE
WAIVED
•
•
•
•
Espionage – 212(a)(3)(A)(i)
Unlawful Activity Related to Security –212(d)(3)(A)(ii)
Attempts to overthrow USG – 212(d)(3)(A)(iii)
Contrary to Foreign Policy Interests – 212(a)(3)(C)
WHAT GROUNDS CANNOT BE
WAIVED
• Applicants who are or have been
determined to be Class A for drug abuse or
addiction for those substances listed in
Schedules I through V of Section 202 of the
Controlled Substance Act are not eligible
for a waiver and must complete the time
period for sustained, full remission before
reapplying for a visa—generally one year of
full remission.
WHAT GROUNDS CANNOT BE
WAIVED
• Nazi Party Membership and
Genocide
– 212(a)(3)(E)(i) and (ii)
• Individual whose presence is
contrary to USG interests —
212(f)
• Student Visa Abusers. 5 year bar
to admission.
212(d)(3) Nonimmigrant Waiver Process
• The waiver application is typically given to
Consular Officer who then forwards it to the
CBP Admissibility Review Office (ARO) which
issues a decision and communicates it back to
the Consulate.
• No form or specific format for waiver
applications submitted at Consulate; also, no fee.
212(d)(3) Nonimmigrant Waiver Process
• Foreign nationals who do not typically
require a visa to enter the U.S. (e.g., most
citizens of Canada,) may be eligible to
apply for waiver directly with CBP at Port
of Entry in advance of travel to the U.S. by
filing Form I-192 (along with $585 filing
fee.)
– CBP will take the application and any evidence
submitted in support of the request and send to
ARO for decision.
FACTORS CONSIDERED BY
CONSULAR OFFICERS
• Three factors considered when adjudicating
waiver (Matter of Hranka):
1) Must demonstrate no risk of harm to US society
if admitted into US;
2) the seriousness of the prior immigration or
criminal law violations; and
3) nature of reason to enter US (compelling reason
not required.)
How Matter of Hranka is applied
• Recency and seriousness of activity or
condition causing applicant’s
inadmissibility
• Reasons for proposed travel to U.S.
– Any legitimate purpose, such as family visits
medical treatment (whether or not available
abroad,) business conferences, tourist, etc.
• Crimes—5 year rule. Prism of violence.
• Misrepresentation
How Matter of Hranka is applied
• Unlawful Presence
– Reason for and culpability in unlawful presence
– Length of time outside the United States since unlawful presence
– Incompetent legal representation
• Substance abuse
– DUIs
o DOS/CDC policy – One alcohol related arrest or conviction
within last five years or two more alcohol related arrests or
convictions with last ten years or other evidence to suggest an
alcohol problem invokes mandatory referral to panel
physician and often psychologist to consider abuse and
associated harmful behavior—past, present or future.
– Drug Use
– Helpful Evidence to Submit to Prove Rehabilitation/Remission
WHERE TO GO WHEN THE
CONSULAR OFFICER SAYS NO
• Attorney has right to appeal refusal of consular
officer to recommend waiver to the Advisory
Opinion Division of the Visa Office and request
de novo review
• Rarely successful unless previous waiver granted
and no changed circumstance to justify refusal of
subsequent waiver
• If VO agrees waiver should have been
recommended they can recommend a waiver to
ARO
– Note: Consular officer has opportunity to submit
arguments to VO opposing the waiver
PROCESSING TIMES AND
PROCEDURES IN PROCESSING
NIV WAIVERS
• Consular Post Process
– Electronic Process
– How to Ensure Attorney Material Submitted to
ARO
– Processing Times at Posts Today
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