When attorneys help their foreign-born clients apply for U.S. visas, it’s important that they ask them the tough questions upfront. Putting off or ignoring these inquiries can lead to big problems later in the visa process.

These are 2 of the most important questions that need to be asked:

– Have you ever been arrested or convicted of any crimes?

– Have you ever violated U.S. immigration law in the past, i.e. overstayed a visa or worked without authorization?

The reason for these is that both are specifically asked about on visa application forms filed with USCIS, electronic forms filed with Department of State before consular interviews and asked in person by Customs and Border Protection officials when one arrives at any port of entry. If these questions are not answered truthfully on the form, and the deception or omission is discovered, it can lead to a rejection of an applicant’s visa petition, and potentially a bar to admission based on fraud.

If the client answers “yes” to either of these questions, the attorney needs to get the exact details and applicable documents of each incident, to get an idea of how long ago the incident in question occurred, what the exact circumstances were and what the final resolution was. This information will help you draft a letter in support of the visa, in which you put the past problems in the best light possible for your client. It may also raise red flags about admissibility bars that require waiver applications to raise legal bars and allow people to enter the U.S.

On the flipside, if you don’t ask your client these questions right away, you’re playing with fire. He or she may well have a visa approved stateside, only to run into problems at the consular interview abroad when confronted with the real record.

It will then be much, much harder to explain the past behavior away or apply for a legal remedy if it appears that the applicant has been lying or concealing the matter.

I often handle cases at this stage that were referred to me by other attorneys who didn’t ask these questions. Many applicants are not aware that any arrest in their past in ANY country must be disclosed.

If an inconsistency is discovered, and there is criminal behavior in a applicant’s past, a waiver must be obtained so that the legal bar on entry to the country can be lifted. Such a waiver can take up to a year or more to process and does not have much chance to succeed unless it’s prepared by an experienced professional.  And unfortunately, because it is such a long delay, in the case of employment-based visas, employers sometimes decide they don’t want to wait that long, and pull the plug on their visa sponsorship altogether.

So be proactive, and ask your clients the difficult questions immediately. It may be uncomfortable, but it will save them a lot of grief later.

If you don’t know what you’re doing or don’t want to ask the hard questions, have the decency to refer the case to someone who does, and can best protect your client’s interests.

 

Steve Maggi

SMA Law Firm

smaggi@smalawyers.com

(212) 402-6885

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