{4:20 minutes to read} The U.S. currently has 294 physical embassies, consulates and diplomatic missions across the world. In addition to assisting U.S. citizens and U.S. green card holders abroad, these posts also adjudicate visa applications as well as final adjudications of immigrant visa petitions and waivers (legal pardons) for previous deportations/removals and criminal infractions.

The visa policies, based on the Immigration and Nationality Act (INA), are applied by consular officers using the Foreign Affairs Manual (FAM)—the “bible” for consular officers.

That being said, each post is its own island. Each post has its own politics, procedures and ways of emphasizing certain elements over others, requiring more or fewer documents, etc.

Individual consular officers adjudicate the nonimmigrant (temporary) visa applications, with significant leeway to deny petitions based on several grounds:

1.The applicant does not meet the legal standard on the merits.

This includes applications presented directly at the post, including B1/B2 visas or E1/E2 visas. Officers can also “re-adjudicate” a petition already approved by USCIS and determine that the law was not sufficiently applied to the facts. They remand the case back to USCIS, which ends in a denial of the underlying petition.

2. The applicants lacks sufficient ties to their home country.

With the exception of the L and H visa categories (“dual intent”), applicants for nonimmigrant (temporary) visas must clearly demonstrate “sufficient” ties to their home country—their country of origin or country where they have permanent residence. This is shown through:

— Stable employment;

— Property/Possessions such as houses, cars, boats, etc.;

— Savings/Investments in their home country;

— Family ties, the strongest being to a spouse or children; and/or

— Community ties, the “catch all” standard used in the majority of visa applications.

3.The applicant demonstrates “Immigrant Intent.”

If, in reviewing the circumstances surrounding a petition, the officer feels that the applicant has the intention of remaining in the U.S. permanently (and thus violating the terms of their potential visa), the application can be denied. Form DS-160 serves to alert officers of immigrant intent by including information on family members in the U.S., U.S. travel history, previous visas, bank accounts, real property, etc.

4.The applicant is inadmissible.

Previous criminal or U.S. immigration infractions can make applicants inadmissible for 3, 5 or 10 years, or even for life, however each consular officer has the power to grant waivers which allow the bars to admissibility to be raised temporarily for specific purposes. An officer can also apply the “petty offense exception” to small, one-time infractions.

On April 27, 2011, the Department of State issued a final rule that broadened a consular officer’s visa revocation authority. A consular officer is now authorized to revoke a nonimmigrant or immigrant visa at any time, including after issuance, at the sole discretion of the consular officer. Consular officers can also revoke a visa provisionally, pending the outcome of an investigation as to whether a final revocation is appropriate.

In light of all the above, it is very important that visa applicants be thoroughly prepared when they apply for ANY visa and consulting with an experienced U.S. consular attorney will maximize their chances of getting the visas they need. For any consular law questions, please contact Steve Maggi at smaggi@smalawyers.com

 

Steve Maggi, Esq.
SMA Law Firm
U.S. Immigration & Consular Law
212-402-6885