Strategies for Waivers of Ineligibility: A Process in Three Stages, Part I

No one wants to break the news to a client that she can’t obtain the visa she requires for a long-planned vacation or business trip because of an action, conduct, or condition that makes her inadmissible.  This is even harder to handle when both the client and the attorney find this out at the same time–either during the consular visa interview, or at the port of entry.  It’s not always possible to know what information the Department of State of Department of Homeland Security (DHS) have or whether it has been interpreted as rendering an individual ineligible for a visa or admission.  Without this information, it is impossible to know whether waiver relief is available at all and determining whether it is likely to be granted — now, later, or never.  But there are three points in the visa application process where careful counsel can either anticipate or solve the problem:  1) before the application, in the client intake process, 2) in preparing a client for the visa interview, and 3) after an adverse decision by a consular section.

Before the application:  the client intake form and initial consulting interview provide the first opportunities to identify possible grounds of inadmissibility.  Too many intake forms replicate a laundry list of questions taken from the DS 160–that is, they ask directly in yes/no format if the client engaged in specific behavior or used fraud to get a visa or immigration benefit.  As consular officers have long known,  you can’t rely on an applicant’s answers to similar questions on the DS 160 and DS 260 forms–the real story frequently doesn’t come out until the interview itself.  A smarter use of the intake form would be use it to ask the client for background–for details about what they may have done in the past in connection with a visa application.  Here are some examples of how to move beyond yes/no answers:

–“Did you ever stay in the U.S. longer than you were authorized, or for longer than you told the consul who interviewed you?  Please explain.”

–“Did anyone ever ask your help in connection with their own visa application or difficulties entering the U.S.?  If so, what did you do for them (if anything)?”   (aimed at possible 6E inadmissibility);

–“Did you ever fail to explain completely why you wanted to travel to the U.S. or what you wanted to do there when applying for a visa?”

— Instead of asking if the client had ever committed a crime, ask her to “Describe any instances since you turned 16 during which you were arrested/detained by police, charged with a criminal offense, no matter how minor, cautioned or convicted even if the only penalty was a fine and the offense was later removed from the record.”  Such a question can elicit the kind of detail that helps determine whether the conduct at issue rises to the level where inadmissibility is a likely outcome.  The question also minimizes the possibility that the client would fail to advise you about it.

An intake questionnaire that provides comprehensive and detailed client information, and a well-prepared consult that establishes visa eligibility, confirms the presence of any inadmissibility grounds, and educates the client about her options, are essential to determine whether waiver relief is available and likely to be granted.  The initial consult provides an opportunity for the client to tell her story and provide more context for the information in the questionnaire, and for the attorney to gain the client’s confidence and confirm or refute what the questionnaire’s answers point to.  Usually by the time she sits down with her attorney,  the client may already know or suspect that she is in some kind of trouble, but she probably doesn’t know why or what to do about it.  This is the time to explain what inadmissibility means, how it is determined, and what consequences it has for the client’s ability to travel to the U.S. in future.   A well-prepared consult also helps avoid the pitfalls of over-selling the waiver process to clients who will require one.  There is a lot of chatter about waivers on the internet–much of it of dubious reliability–and much confusion about how they operate.  Use the consult to dispel misinformation.

The consult should make clear at the start that waiver relief is discretionary, not mandatory, and is granted by DHS, not the Department of State.  Clients frequently misunderstand the consul’s role in the waiver process–which is to determine whether to recommend that DHS grant waiver relief, not rule on the merits of the request.  This is an important role, but of equal importance is the consul’s responsibility to determine whether the client is “otherwise eligible” for the visa being requested.  In other words, the consul is tasked with determining whether an applicant would qualify for a visa if a waiver were granted, before deciding whether or not to recommend a waiver.  The waiver request does not even make its way to DHS unless the consul determines that a waiver would permit issuance of the visa.

Because of this, a key objective of the consult is to determine whether the client would qualify for visa issuance in the first place.  Someone with weak ties to a residence outside the U.S. or who has not meet the base-line requirements for issuance of the visa for which they are applying is at much greater risk of being sent away with a 214(b) denial than she is of failing to gain the consul’s favorable waiver recommendation.  If the consult points to that outcome,  focusing too much attention on the waiver process will only serve to disappoint the client and call the attorney’s judgment into question.









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