IMMIGRATION GUIDE
Atty. Emmanuel S. Tipon

“The petition I filed for my relative was approved by immigration but the Consul denied him a visa, how come?” is a frequent question by immigration petitioners.

The issuance by a U.S. Consul of an immigrant visa to a beneficiary of a visa petition is not automatic, even though the U.S. Citizenship and Immigration Services (USCIS) has approved the petition.

The USCIS approves the petition based solely on the documents submitted. If it appears on paper that the petitioner has established the requirements for the particular petition, it sends the documents to the National Visa Center. The NVC will ask the petitioner to pay the affidavit of support and visa fees and submit an affidavit of support and have the beneficiary submit a visa application. Then it will forward the documents to the U.S. Consulate in Manila.

Final determination

The U.S. Consulate makes the final determination whether a visa should be issued. It bases its decision on the documents it receives and the interview of the beneficiary. The Consul will deny the visa if he determines that (1) the documents are not credible or are not sufficient, or (2) the alien does not really meet the requirements for the visa applied for, or (3) the alien is ineligible under the Immigration and Nationality Act, more specifically Section 212.

It is like applying for a job. If it appears from your application that you are employable, the employer will call you for an interview. If the employer determines, after the interview, that the papers you submitted are not credible or that you are not eligible for the job, it will not give you a job.

Grounds

The ten most common grounds for denial of a visa are:

1. The alien has no petitionable relationship with the petitioner.

2. The alien has sought to procure or has procured a visa by fraud or by willful misrepresentation of a material fact.

3. The alien has a communicable disease of public health significance.

4. The alien has a physical or mental disorder with associated harmful behavior that may pose, or has posed, a threat to the property, safety or welfare of the alien or others.

5. The alien has abused a controlled substance, or has admitted to committing acts in violation of any law or regulation of the U.S. or of a foreign country relating to a controlled substance.

6. The alien is likely to be a public charge.

7. The alien has been convicted of or admitted to have committed, a crime involving moral turpitude.

8. The alien does not have a Labor Certification.

9. The alien has been ordered removed (deported) from the U.S.

10. The alien was unlawfully present in the U.S. for 181-364 days and voluntarily departed, in which case the alien will be barred for 3 years, or the alien was unlawfully present in the U.S. for 365 days or more and voluntarily departed, in which case the alien will be barred for 10 years.

There are other grounds for visa denial, but they do not usually occur among Filipinos, like engaging in terrorist activities or trafficking in persons. See INA Section 212 and other sections for more grounds.

In future articles, we shall discuss these grounds in more detail.

How to avoid visa denial

Send this article to the relative whom you petitioned and is waiting for a visa interview. Ask whether your relative might fall under any of the grounds listed above or other grounds specified in INA Sec. 212 and other laws.

If your relative says “Yes,” consult an honest and competent attorney long before the interview. There might be a way to avoid a possible denial of a visa or obtain a waiver (forgiveness).

Your relative, particularly those susceptible to a visa denial for “no petitionable relationship,” should thoroughly prepare for the interview, preferably with the assistance of an experienced counsel.

(Atty. Tipon was born in Laoag City. He has Master of Laws degree from Yale Law School and a Bachelor of Laws degree from U.P. He practices law and writes law books. He served as an officer of the former INS. Office: 905 Umi St., Suite 201, Honolulu, HI 96819. Tel. (808) 847-1601. E-mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. This article is for general information only and is not intended as legal advice)