Interview Denials and Waivers
A petition's approval by the USCIS is not a guarantee for an immigrant visa (aka green card). Although such prior approval by the USCIS carries a relatively strong presumption of visa eligibility, the US Embassy can independently refuse the issuance of the green card. It is during the scheduled interview where the consular officer gets the chance to discover certain facts constituting ineligibility, initially unavailable to the USCIS.
For example, a spousal petition by the American husband is almost always approved by the USCIS in the US. When the Filipina wife gets interviewed in the Embassy here in the Philippines, she will face seemingly harmless questions from consular officers designed to check her personal background. If she admits that she was once employed in a nightclub where she and her husband met, chances are she will be refused her green card on the ground of prostitution, if the facts and circumstances will lead a reasonable person to believe that the applicant engaged in sex for money.
Following the refusal, the officer will then instruct the applicant to file for a waiver. Waivers are likened to appeals, not much on disputing the findings of the officer, but more of offering mitigating or extenuating circumstances (e.g. poverty forced the applicant into prostitution) and explaining the extreme hardships to a US citizen or green card holder (e.g. American husband is suffering extreme emotional stress due to the separation from his Filipina wife) if the applicant's waiver will be denied.
The applicant should fill-up and submit Form I-601 and pay the waiver fee per ineligibility ground. Applicant is normally given 90 days to file his waiver. Applicant should also attach supporting documents to substantiate his claims.
Most of immigrant visa denials such as overstaying and misrepresentation allow for a waiver. But if the ground for denial is for having committed murder or being a one-time user of marijuana, the waiver remedy is not allowed. In effect, certain criminal acts and drug use constitute lifetime ban.
If the waiver is denied, the next step is a motion to reopen or a motion for reconsideration that should be pursued within 30 days from denial notice. Another remedy is to submit an appeal letter to the US Department of State.
For most non-immigrant visas (fiance, working, student but not tourist visa), waivers are normally recommended by consular officers. In deciding whether or not to recommend a waiver, consular officers are instructed to consider the following factors, amongst others 1) recency and seriousness of the activity or condition resulting in the alien s inadmissibility, 2) reasons for the proposed travel to the US; and 3) any effect, positive or negative, of the planned travel on US public interests.
The above article merely serves as general information that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and appraise you on how to prepare your waiver application. The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Atty. Paolo A. Claudio is a member of the Philippine Bar and New York Bar. As a New York lawyer, he is authorized to practice US federal law, including US Immigration law. He has already secured a number of approved waivers and appeals both at the US Embassy in Manila and Administrative Appeals Office in mainland United States. If you have specific questions on your case, feel free to contact him at Globex Immigration Alliance Services.
For example, a spousal petition by the American husband is almost always approved by the USCIS in the US. When the Filipina wife gets interviewed in the Embassy here in the Philippines, she will face seemingly harmless questions from consular officers designed to check her personal background. If she admits that she was once employed in a nightclub where she and her husband met, chances are she will be refused her green card on the ground of prostitution, if the facts and circumstances will lead a reasonable person to believe that the applicant engaged in sex for money.
Following the refusal, the officer will then instruct the applicant to file for a waiver. Waivers are likened to appeals, not much on disputing the findings of the officer, but more of offering mitigating or extenuating circumstances (e.g. poverty forced the applicant into prostitution) and explaining the extreme hardships to a US citizen or green card holder (e.g. American husband is suffering extreme emotional stress due to the separation from his Filipina wife) if the applicant's waiver will be denied.
The applicant should fill-up and submit Form I-601 and pay the waiver fee per ineligibility ground. Applicant is normally given 90 days to file his waiver. Applicant should also attach supporting documents to substantiate his claims.
Most of immigrant visa denials such as overstaying and misrepresentation allow for a waiver. But if the ground for denial is for having committed murder or being a one-time user of marijuana, the waiver remedy is not allowed. In effect, certain criminal acts and drug use constitute lifetime ban.
If the waiver is denied, the next step is a motion to reopen or a motion for reconsideration that should be pursued within 30 days from denial notice. Another remedy is to submit an appeal letter to the US Department of State.
For most non-immigrant visas (fiance, working, student but not tourist visa), waivers are normally recommended by consular officers. In deciding whether or not to recommend a waiver, consular officers are instructed to consider the following factors, amongst others 1) recency and seriousness of the activity or condition resulting in the alien s inadmissibility, 2) reasons for the proposed travel to the US; and 3) any effect, positive or negative, of the planned travel on US public interests.
The above article merely serves as general information that may or may not apply to your case, as each case is different and should be considered on a case-by-case basis. It is recommended to seek the advice of a US immigration lawyer who can best analyze your (or your relative's) situation and appraise you on how to prepare your waiver application. The information in this article is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Atty. Paolo A. Claudio is a member of the Philippine Bar and New York Bar. As a New York lawyer, he is authorized to practice US federal law, including US Immigration law. He has already secured a number of approved waivers and appeals both at the US Embassy in Manila and Administrative Appeals Office in mainland United States. If you have specific questions on your case, feel free to contact him at Globex Immigration Alliance Services.