Announcement

Collapse
No announcement yet.

Articles: Mistakes That Applicants for Fiancée and Spousal Visas Make by Marc Ellis

Collapse
X
Collapse

  • Articles: Mistakes That Applicants for Fiancée and Spousal Visas Make by Marc Ellis

    Mistakes That Applicants for Fiancée and Spousal Visas Make

    by Marc Ellis

    In 17 years of practicing immigration law, I see people make the same mistakes over and over again. These mistakes cause a large number of visa refusals all over the world.

    For simplicity, I have grouped these mistakes into four different categories and given each one an easy-to-remember name.

    Where’s the Ex?

    Who’s your Daddy?

    Who’s been sleeping in my house?  

    What have you done for me lately?

    1. Where’s the Ex?

    If a petitioner or a visa applicant has been divorced previously, they will probably be asked about it. So it is helpful to know the name, address and phone number of each ex-spouse. The consulate performs a background check on the US petitioner and very likely, the name of the ex-husband or ex-wife will show up in that background check.

    The consulate can ask the beneficiary about that. How will he or she answer the question at the consular interview? In my experience, saying “I don’t know anything about that,” does not help get the visa.

    The burden is on the petitioner here. I have always thought it is best to walk on the side of full disclosure. A petitioner needs to be prepared to answer questions about his or her marital history. Not only that, the disclosure should be made as early in the process as possible. It should not wait until the day of the consular interview.

    Vietnamese culture lends a wrinkle to “Where’s the Ex?” situations. In the past, it was culturally accepted to have a dam cuoi and never formalize the marriage with the provincial authorities. That happens less today, but it still happens.

    Thus in Vietnam, a couple could be viewed as married, yet still be single according to the civil authorities. “Where’s the ex?” applies to these cases too, especially in cases where the couple has had children. US Citizen petitioners need to consider that.

    That leads me to the next category:

    2. Who’s Your Daddy?

    The consulate does research to see if there is a familial relation between a petitioner and a beneficiary.  Are they first cousins for example? Vietnamese law does not sanction the marriage of first cousins. The consulate may ask questions about the family tree of the couple.

    Another time this line of inquiry becomes important is with children. If a female beneficiary has a child who is claimed to be petitioner’s, the consulate may request evidence of that relationship. It has a right to do that, because part of the consulate’s job is to determine presumptive US citizens. This line of inquiry could also disqualify a child from being a US citizen, if it turns out that he or she is not petitioner’s child after all.

    A denial letter sample

    3. Who’s Been Sleeping My House?

    When a background check is performed on a US Citizen petitioner, it includes his or her residential and credit history. I have seen cases where the consulate mistakenly concludes the petitioner has a US girlfriend, when the background check comes back with an unrelated person of the opposite sex living in the same home.

    I won an appeal with the Board of Immigration Appeals recently for a petitioner was still living in the same home as his ex-wife. A consulate (not in Vietnam) saw that living arrangement in a background check.  We were able to persuade the Board despite their living arrangements, they had been divorced for over a decade and there were no other entanglements to indicate they were still husband and wife. But US citizen petitioners need to remember – the consulate probably knows who’s been sleeping in your house. The beneficiary needs to be prepared for that.

    4. What Have You Done for Me Lately?

    This ground is easy to understand. Consulates are suspicious of marriages or engagements, where there is very little contact between petitioner and beneficiary. US citizens preparing to marry Vietnamese need to understand that it is not something you can do cheaply. They need to make a commitment to make regular visits to the beneficiary and where visiting is not possible, to supplement it with daily contact via electronic communications like email, chat or internet telephony.

    Someone might correctly point out that these requirement are not to be found anywhere in US immigration law. That is correct. But Department of State and its consulates are not a legal culture. They’re encouraged to find adverse facts that USCIS did not know at the time it approved the petition. In my experience practicing law, most of those adverse facts arise from one of these four categories.

    This is not an easy or a safe process. It’s grueling. Couples need to be prepared.


    About The Author

    Marc Ellis has practiced immigration law for seventeen years. He’s from Louisiana/Texas and graduated from the University of Alabama Law School. He’s a member of the Louisiana State Bar and American Immigration Lawyers Association and is a licensed foreign legal representative in Vietnam. He has written many articles on immigration law and practices in front of many consulates around the world. He and his wife live in Ho Chi Minh City. He can be reached at chuyenvisamy.com or at 0908358009


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

    • Guest's Avatar
      #1
      Guest commented
      Editing a comment
      Fiance Visa

      It is said that Fiance visa or K1 is the fastest and the easiest path to get to the U.S. but with all the paper works this alone could stress the applicant.

      Maybe this steps can help or they can always ask help with Rapdivisa https://rapidvisa.com/k1-visa-process/
    Posting comments is disabled.

Categories

Collapse

article_tags

Collapse

There are no tags yet.

Latest Articles

Collapse

  • Article: The EB-5 Immigration Program and the Investors Process By H. Ronald Klasko
    ImmigrationDaily

    If you are having difficulty viewing this document please click here.

    08-20-2018, 08:15 AM
  • Article: Immigration Judges’ Union Fights for Judicial Independence By Karolina Walters
    ImmigrationDaily
    Immigration Judges’ Union Fights for Judicial Independence by Karolina Walters The National Association of Immigration Judges (NAIJ), the union that represents the nation’s immigration judges, is challenging the government’s decision to remove an immigration judge from a well-known case and replace him with a judge who immediately ordered the immigrant in the case deported. NAIJ’s grievance addresses the treatment of one immigration judge, but its resolution will have implications for judicial independence throughout the entire immigration court system. The grievance was filed on behalf of Philadelphia-based immigration judge Steven A. Morley, who was presiding over the case of Mr. Reynaldo Castro-Tum. Castro-Tum’s case rose to national importance earlier this year when Attorney General Jeff Sessions chose to refer the case to himself to reconsider the Board of Immigration Appeals’ previous decision in the case. In reconsidering the decision, Sessions effectively eliminated judges’ use of administrative closure, a docket management tool. Sessions sent Castro-Tum’s case back to Judge Morley, noting that the immigration court order Castro-Tum removed if he did not appear at his next hearing. Castro-Tum did not appear at the next hearing. However, Judge Morley continued the case to resolve whether Castro-Tum received adequate notice of the hearing. Due process requires, at a minimum, that an individual be given notice of proceedings and an opportunity to be heard by a judge. But before the next hearing could take place, the Executive Office for Immigration Review (EOIR) replaced Judge Morley with an Assistant Chief Immigration Judge who ordered Castro-Tum removed when he did not appear at court again. In their grievance, NAIJ asserts that the decision to remove Judge Morley from Castro-Tum’s case and reassign many other cases from his docket resulted in unacceptable interference with judicial independence. The grievance specifically claims that EOIR’s actions violate immigration judges’ authority under the regulations to exerci...
    08-17-2018, 11:12 AM
  • Article: Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico By Sophia Genovese
    ImmigrationDaily
    Indirect Refoulement: Why the US Cannot Create a Safe Third Country Agreement with Mexico by Sophia Genovese The Trump Administration is seeking to create and implement a safe third country agreement with Mexico . Under this agreement, asylum seekers arriving at the US border who have travelled through Mexico would be denied the ability to file their asylum claims in the US. Such an agreement would trample on the rights of asylum-seekers, violating both international and US asylum law. In particular, the US would be violating the international principle of non-refoulement , which provides that no State “shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened,” where Mexico has a proven track record of being anything but safe for asylum seekers . The US has also codified Article 33(1) of the Refugee Convention into Section 208(a)(2)(A) of the Immigration and Nationality Act (INA) which provides that it will not return an asylum seeker to his or her country of origin, but may, at the determination of the Attorney General, remove the asylum seeker to a “safe third country… where the [asylum seeker] would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection.” Although Mexican officials have not yet indicated whether they would sign a safe third country agreement with the US, asylum advocates should proactively seek to prevent such a devastating policy with a country that lacks adequate asylum protections. As reported by Human Rights First and Amnesty International , 75 percent of asylum seekers apprehended and detained by the National Institute of Migration (INM), the Mexican immigration enforcement agency, were not informed of their right to seek asylum. Even if asylum seekers are able to make their claims, only 30% of the asylum proceedings are ever concluded , and even fewer are granted, leaving many bona fide asylum seekers stranded without a resolution. The treatment of unaccompanied minors’ asylum claims in Mexico are even more dismal. Of the 35,000 minors apprehended by the INM in the first half of 2016, only 138 were able to apply for asylum , of which only 77 were granted protection. Beyond the failing asylum system in Mexico, asylum seekers are also in extreme danger of kidnapping, murder, rape, trafficking, and other crimes by INM officers and civilians. A safe third country agreement with Mexico would violate the United States’ international obligations under the 1967 Optional Protocol to the Refugee Convention, to which we are a signatory, which adopts by incorporation the obligations outlined in the 1951 Refugee Convention, to which the US is not a signatory. Take the example of an asylum-seeker, Mrs. H, who is fleeing politically-motivated violence in Honduras. Her husband, Mr. H, was a vocal political activist who opposed the National Party and members of the Honduran government. Mr. H began to receive death threats due to his political beliefs and reported such threats to the authorities. The authorities, however, di...
    08-16-2018, 02:32 PM
  • Article: Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence By Eugene Goldstein, Esq.
    ImmigrationDaily

    Flawed Statistics Undermine USCIS/ICE/SEVP’s Restriction of D/S for Unlawful Presence

    by


    On August 9, 2018 USCIS published a “Policy Memorandum” restricting the 20-year-old calculation of Duration of Status (D/S) for F-1, J-1 and M-1 entrants (and their derivative families). https://www.uscis.gov/sites/default/...immigrants.pdf

    USCIS also published an announcement (hereinafter “announcement”) “USCIS Issues Revised Guidance on Unlawful Presence for Students and Exchange Visitors https://www.uscis.gov/news/uscis-iss...hange-visitors , and a general discussion “Unlawful Presence and Bars to Admissibility” ...

    08-15-2018, 12:57 PM
  • Article: Update On Express Entry Immigration To Canada By Edward C. Corrigan and Selvin Mejia
    ImmigrationDaily
    Update On Express Entry Immigration To Canada by Edward C. Corrigan and Selvin Mejia On January 1, 2015 the Federal Conservatives introduced significant changes to Canada’s economic immigration program. Formerly called the Skilled Worker program the new program was re-branded as Express Entry which included Skilled Workers, the Federal Skilled Trades program, and the In-Canada Experience Program. Canada modelled its revamped economic immigration program on New Zealand’s. There is also an Atlantic Immigration program. In addition there is a separate Live-In Caregiver program where individuals can apply for Permanent Residence after two years employment in this category. EXPRESS ENTRY The initial object of the changes was to create a list of Applicants where the Federal Government could select the best and the brightest from the list of Applicants. The Express Entry was supposed have applicants who had an approved Labour Market Impact Assessment (LMIA) and a valid job offer from an approved Canadian Employer. Under the Comprehensive Ranking System (CRS) candidates were award 600 points for having an approved job offer. Applicants would have achieved a point score of around 1,000 with the 600 points for having a valid offer of employment under the CRS. The provinces in Canada were also allowed to select Applicants according to their economic needs and these applicants that were selected through the respective provincial nominee programs by a province were awarded 600 points to be added to their score. Ontario also has a program where graduates from an Ontario University with a Master’s or who were in a PhD. program would be approved and awarded 600 points which virtually assured that they would be approved and provided with an invitation to apply. There is a quota that governs this graduate program. LABOUR MARKET IMPACT ASSESSMENTS Things did not go according to plan with Federal Express Entry. Very few Applicants were able to attai...
    08-14-2018, 12:50 PM
  • Article: USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy By Cyrus D. Mehta
    ImmigrationDaily
    USCIS Finalizes Unlawful Presence Policy Putting F, J and M Nonimmigrants In Great Jeopardy by Cyrus D. Mehta The USCIS finalized its unlawful presence policy for F, J and M nonimmigrants on August 9, 2018. The final policy makes no significant changes from the draft policy of May 10, 2018. My earlier blog noted the flaws in the draft policy, which persist in the final policy. The final policy incorrectly breaks down the distinction between violating status and being unlawfully present in the US. As of August 9, 2018, F, J and M nonimmigrants who have failed to maintain nonimmigrant status will start accruing unlawful presence. Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. See INA § 212(a)(9)(B)(i)(I) & (II) . Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled, are permanently inadmissible. See INA § 212(a)(9)(C)(i)(1). Prior to August 9, 2018, foreign students (F nonimmigrants) and exchange visitors (J nonimmigrants) who were admitted for, or present in the United States in, Duration of Status started accruing unlawful presence on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigrant benefit or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. F and J nonimmigrants, and foreign vocational students (M nonimmigrants), who were admitted until a specific date certain accrued unlawful presence on the day after their Form I-94 expired, on the day after USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit, or on the day after an immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first. This will no longer be the case. Under the new policy effective August 9, 2018, any status violation will start the accrual of unlawful presence. The nonimmigrant will not be provided with any formal notice of a status violation, and any violation from the past that has been discovered would have already started the accrual of unlawful presence. According to the pol...
    08-14-2018, 10:51 AM
Working...
X