SHAUTSOVA’S UPDATE
VOLUME 90, February 2019
Published by the Law Offices of Alena Shautsova, 2908A Emmons Ave, Brooklyn, New York 11235
175 Eileen Way, Syosset NY 11791
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What to Do if US Immigrant Visa is Denied
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- TIPS FOR DEALING WITH THE NVC
Author: US Immigrant Visa Attorney Alena Shautsova
National Visa Center is a “middle man” between the applicant/petitioner and the consulate when one is applying for immigrant and certain non-immigrant visas. You will need to deal with the NVC prior to appearing for a visa interview and here, knowing certain its practices will help tremendously.
How NVC Gets The Case
The case is transferred to the NVC once the immigrant petition indicating consulate processing is approved. It takes NVC about 6 weeks to receive the case. At times, the case is routed to the NVC by mistake: for example it is true for religious immigrant petitions. Since in that category it is not possible for the beneficiary to submit I 485 adjustment of status form concurrently with the I 360, often approved religious petitions are transferred to the NVC. At times, the case should be transferred to the NVC but instead it is designated for adjustment of status process. In such situation, a special form has to be filed to transfer the approved petition to the NVC. It may take 8 months for the case to be transferred in such cases.
Most Common Issues When Submitting Documents to the NVC
NVC’s primary function is to collect documents necessary for an interview and schedule an interview at a consulate. The case at the NVC’s stage will not reach the interview if all the required documents are not collected. The most common issue at this stage is one related to the affidavit of support. Currently, the evaluation of the sufficiency of sponsor’s income and ability to sponsor a beneficiary is being considered under expanded guidelines: tax returns alone do not establish income sufficiency. It means that the petitioner should attach more documents proving income other than tax returns. Tax returns have to be produced even when the sponsor resides abroad. Residence outside of the United States does not exempt U.S. citizens or lawful permanent residents from filing a U.S. Federal income tax return. Per 9 FAM 302.8-2 the sponsor(s) must provide the Federal income tax returns for the most recent tax year. If the sponsor did not have to file a tax return, they must attach an explanation that shows why they were not were not obligated to file.
Further, NVC does not consider assets as proof of sponsor’s income sufficiency. In cases where the income is not sufficient, a joint sponsor should be considered.
Visa Retrogression Issue
At times, the visa number becomes available but then retrogresses. In such cases, NVC will keep the case in a current status, and the applicant can continue to pay fees and submit forms and documents. NVC, however, will not schedule the case for an interview until it becomes current by Final Act ion Date in the visa bulletin. Therefore, the applicant should not expect to receive a letter to reinitiate the NVC process upon a case becoming current by Filing Date after retrogression because NVC no longer transfers the case to a “non-current” status.
Finally, in all cases where you cannot or do not want to act immediately n an approved current petition, you need to stay in touch with the NVC and appraise them of your interest in the petition at least once a year to avoid termination of the case’s registration. The best way to contact the NVC is through ASK NVC form: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/ask-nvc.html .
If you have questions regarding Immigrant Visas, please schedule a consultation at www.shautsova.com or by calling 917 885 2261.
- 214(b) Visa Refusal: Can Legal Net Help?
Author: US Visa Attorney Alena Shautsova
214(b) denial of the US visa application is one of the most common reasons why a person cannot enter the US. This denial may be caused because a consul determined that a person has an immigrant intent while applied for a non-immigrant visa, or because the person failed to meet requirements for a visa: an L-1 visa applicant may be refused under 214(b) if the consular officer finds he or she lacks one year of qualifying experience at the overseas company; an E visa applicant may receive a 214(b) refusal if the consular officer finds that either the company or the applicant fails to satisfy the treaty visa criteria. By contrast, an applicant for a B-2 visa may be refused on grounds under 214(b) if he or she is unable to overcome the presumption of immigrant intent because of a lack of evidence of a residence outside the United States.
LegalNet is an avenue to dispute unfair denial at the consulate. LegalNet’s opinion is usually respected by the consulate. The only caveat is that the officers of the LegalNet will not resolve the issues of facts, but only law (for the most part, since at times it is not possible to separate facts and law). But let’s say we have a situation where X, who presented ample evidence of ties with his home country was nevertheless denied a visa: LegalNet will not review the factual findings even if the consular officer was biased.
LegalNet also cannot resolve issues involving derogatory, wrong information contained in the CBP database or an unfavorable Security Advisory opinion.
Here are examples of situations when LegalNet can help:
— applicability of the law to the issue of inadmissibility
—applicability of the law to the issue of qualification for a waiver (in other words LegalNet can determine if a consulate correctly determined a person’s waiver eligibility)
— legal analysis as to the carinal consequences of the criminal conduct
— certain administrative processing issues
— Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas;
An inquiry to the LegalNet may often resolve a pending administrative processing; may help to fight on an inadmissibility determination made by a consular officer; or may help to overcome a denial of a work visa. Make sure to prepare your argument well: LegalNet is used to deal with the questions of law, and expects a professional, concise statement of the case and legal argument.
You can read more about the LegalNet functions here: https://fam.state.gov/fam/09FAM/09FAM010304.html
- Visa Bulletin: policy/bulletin.html
- The Administrative Appeals Office http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dfe316685e1e6210VgnVCM100000082ca60aRCRD&vgnextchannel=dfe316685e1e6210VgnVCM100000082ca60aRCRD
- Labor Department Processing Times
The following link provides approximate times for PERM processing periods:
http://icert.doleta.gov/#fragment-2
- Nonimmigrant Visa Wait Times
Depending on your location, the US Department of State provides the following approximate visa wait times:
http://travel.state.gov/visa/temp/wait/wait_4788.html?post=Kyiv&x=86&y=13
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Visit our resources on Asylum, Recent Changes in Immigration laws and Processing times:
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