Publications

January 2005

CONSULAR DENIALS AND DELAYS

Correspondents have told us that they have encountered unexpected delays in processing their visas to enter the U.S. We have researched these questions and we set forth here what we have found.

CONSULAR PROCESSING – VISA ISSUES

Since the terrorist attacks against the World Trade Center on September 11, 2001, Consulates are now considered integral to help secure our borders. Electronic information to determine alien admissibility and biometric identifiers have impacted on visa issuance; thus there has been a slowdown which is of particular concern for our economy. Often data bases considered by border security as essential have evoked an opposite viewpoint from the business world and the public as too complex and inoperable.

EXCLUSION

Consulates have the responsibility for finding whether an applicant is inadmissible for any one of the following reasons:

• Health-related grounds;
• Criminal history;
• Security and terrorist concerns;
• Public charge (e.g., indigence);
• Seeking to work without proper labor certifications;
• Illegal entrants and immigration law violations;
• Ineligibility for citizenship; and,
• Aliens previously removed.

Consulates may waive restrictions for refugees, or for relatives of American citizen or permanent residents.

Consulates check their “lookout” and “tip off” databases uniformly. Photographs of all visa applicants in electronic form are now stored as well as fingerprints of the right and left index fingers. Also there is a Terrorist Exclusion List for organizations that are designated as terrorist organization which includes the names of individuals associated with these organizations.

These lists are often misapplied, and mistakes are frequently made regarding names and information for names that appear similar frequently are mistaken. For example, recently Senator Edward Kennedy was barred from flying on a domestic flight because his name was mixed up with a similar name. It took a call from the President to unravel Senator Kennedy’s ban on a domestic flight, Often lesser known people are barred entry for arbitrary or capricious reasons have little recourse.

Consular officers are now empowered to forward suspect individuals’ names to the F.B.I. for a name check. This results in a review by intelligence and law enforcement agencies simply because of a suspicion on the part of a Consulate which may be unfounded and not based on any reasonable basis.

Consulates also review visa applicants who seek to study or work here for the possible threat of their access to technologies that could upgrade military capabilities for foreign nationals of selected countries such as North Korea, Pakistan or Iran. This review is made to prevent the development in these countries of destabilizing military capabilities and to prevent their spread to terrorist states.

DENIAL OF NONIMMIGRANT PETITIONS AND RECOURSE

Criminal convictions are in an important category for the refusal of visa petitions or for prior removal. The most frequent reason for a refusal is that the alien applicant lacked the qualifications for the visa.

REVOKING VISAS

A Consular officer as well as the Secretary of State has the authority to revoke a visa for the following reasons:

• The alien is ineligible to receive a visa, or was issued a visa and overstayed the time limits of the visa. Ineligibility would be for misrepresentation, terrorist activity or an adverse impact on our foreign policy, or for a safety precaution;

• The alien is not entitled to the nonimmigrant visa classification;

• The visa has been physically removed from the passport in which it was issued; e.g. because it was ascertained that a Consul did not explore all the relevant facts. A revocation may be challenged by an Application to Reopen or Reconsider or by an Appeal to the State Department;

• The alien has been issued an immigrant visa.

Consulates often make improvident or hasty decisions, but the burden is on an applicant to show how the Consulate has erred or misapplied the facts or the law. The Department of State has often reported that information provided by national security bureaus did not pertain to a particular alien whose visa was revoked due to a mistake relating to identity or information which could have been explained that would clarify any questions as to an issue of a possible threat. In such cases a Consulate would re-issue a visa and remove the alien from the lookout system.

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New York Immigration Lawyers > Immigration Publications > January 2005