But my lawyer said my visa was approved....

Over the many years working in London, 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. Often, I am contacted by visa 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”.

USCIS 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.

Preparing a Consular Application is a Necessary & Critical Part of the Visa Process for the United States

Gathering 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:

The L-1A Manager - A U.S. visa category for intracompany transfers between businesses

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-160 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 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 officer. 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 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 he will not be travelling to the US in the immediate future.

Lobby of the U.S. Embassy in London (NOTE: Don't expect all Department of State waiting rooms to be this nice).

There is far more to a U.S. Consular/Embassy interview than just "picking up your visa".

As this (albeit extreme) 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.

The O-1 Entertainer & The Show that Never Happened

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.”.

Appealing a U.S. Consular Decision is a Complex and Challenging Matter

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-1 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.

Full-disclosure from Day 1 is a critical aspect to going through the entire visa process.

Collecting Information About the Applicant Before the Petition is Prepared

Had the requisite background details about the beneficiary (i.e. applicant) been collected in the early-stages, the outcome and/or impact on the petitioner would have been different. By contrast, consider the following scenario:

Important Lessons on Disclosure of Information in a U.S. Visa Petition

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” (or maybe even the “Youthful Offender Exception” depending on his age when he was convicted) 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 manager is successful in her role in the US and the company wants to keep her there permanently? 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, which unlike the L-1A can be extended indefinitely, 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.

Petition Reconsideration and Revocation of Approval for a U.S. Visa Application

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 does 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". While this note in the FAM specifically relates to L visa petitions, there are similar notes in other sections to address reconsideration/revocation in other categories. In practice, however, a consular officer may rely on the section of the FAM which provides that “the approval of a petition by DHS does not relieve the alien of the burden of establishing visa eligibility”. The FAM also provides that a consular officer may question the approval of…petitions based on specific evidence that was unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.

Despite the provisions in the FAM, namely in 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. 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 the types of issues that 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 in another part of the world.

Even with the best preparation and anticipation of the post’s concerns, I don’t think it will come as a shock that clients can sometimes withhold information from their lawyers, even if the lawyers ask all the appropriate questions. Therefore, sometimes information does come out at the interview that may be relevant to the case but was not shared with the lawyer at the time the petition and application were prepared. In these cases, the consular officer may have an issue with the petition (and sometimes rightly so) and may recommend that the petition be reviewed and even that the approval be revoked.

U.S. Consular Processing Considerations Must be Part of Your Immigration Strategy from Day 1.

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!"

Do you have a complex U.S. immigration matter that relates to this article?

Daniel Parisi is a licensed U.S. Immigration Attorney. Daniel handles all aspects of US immigration issues, but focuses on visa ineligibility based on criminal history. He has served as Chair of the American Immigration Lawyers Association (AILA) Department of State Liaison Committee for several years and have extensive experience dealing with US Embassies around the world.

Connect with Daniel today and request a consultation to address the specifics of your case.