Visa/Waiver trap

[tigretigre 0]

Anyone think it will be a problem that my fiance has entered the U.S. on VWP before? There is a question on the I-94W about mental illness (really vaguely worded), to which he checked "no" because we assumed they were asking if he was psychotic, mentally incapacitated, or a danger to himself or others (because, why else would it matter?) Suppose the CO has a different interpretation?

The DS156 and DS230 both ask this question in two slightly different ways (which are also different from the I-94W question, if I recall correctly). If he were to check "yes" to either of these (which he might have to do, given how they are worded), would they then deny the visa because he checked "no" on his I-94W, AND allege misrepresentation, making us essentially ineligible for a waiver?

I've read some legal journal articles on this issue, and basically the upshot is that neither the COs nor the courts interpret the mental illness provision consistently, and that is generally vague and confusing. There are maybe a handful of attorneys in the country who have any experience with this issue.

Basically, the question was vague, so my fiance used common sense and made a judgment call. It was never his intent to lie to anybody--he just didn't think he fit the designation.

It just sickens me that any of this is an issue, as my fiance is only dangerous in the minds of people who adhere to ignorant stereotypes about people with mental health problems. This arcane, prejudiced provision of the Code needs to go.

[Marissa&Stephen 0]

Maybe I'm misreading some of this, but I get the impression that you think if he checks Yes on the mental health question that they are automatically going to turn him away? I don't think that is how it would be handled; they do seem to look at each one on a case-by-case basis.

As far as entering the US before on the visa waiver program, I don't think I understand your question there. Are you worried that, because he put No to the mental health question before, putting Yes now would be a problem? I think, at the very least, they would just ask him for more information and deal with it a bit at a time. I just think it'd be best to keep an open mind about this, as you still seem to be early on in the process anyway. You never know, it could be no problem to them at all once he explains it to them.

Keep the faith, and good luck!

[tigretigre 0]

My nightmare goes like this:

Fiance came to visit me three times on his passport. He had to fill out that little card (I-94W) that asks if he has a mental illness. He checked "No" because he figured they mean a really serious mental illness that could either need treatment while he's here or put someone in danger. Makes sense, because why else would they care?

Fiance now wants a K1 visa, and the forms from the state department ask a mental illness question that is slightly different--does he have, or has he ever had a mental disorder with a display of harmful behavior that poses or is likely to pose a danger to him/someone else. It's sort of hard to tell what that question is asking (note the present/past tense agreement problems), but it may be that he will need to answer "Yes."

Fiance goes for his medical, brings his doctor letters and the letter from me and the health insurance info and all that, promises that he will resume treatment in the U.S. HOPEFULLY, the doctor then says "okay, no Class A medical conditions" and we go for the interview.

AT THE INTERVIEW, the CO reviews all the forms, decides the mental disorder thing is old news and he's eligible...then notices my fiance entered the U.S. on his passport to visit me. He goes YOU BAD MAN, that was MISREPRESENTATION because you used to have a mental disorder! Visa denied, no waiver available because of the alleged "misrepresentation." Fiance says "I didn't mean to, I just didn't know what the hell the question was asking!" CO says "you will never enter the United States again! Hahahahaha!"

That is what I am worried about.

[Marissa&Stephen 0]

Well, I am sure that you are worried about this because of how important it is. But honestly, I don't see his past answers being an issue now. I can't imagine that any state department would be so efficient as to actually have access to or look at what he filled out on his previous I-94W forms. If you think he will have no problem with his medical or any other forms required, I wouldn't worry about that. My advice is just to continue to do what you all have been doing and be as truthful as you can.

Again, good luck!

[beetee4ever 0]

wow, for a moment there, I actually thought that what you wrote had happened at the interview.... luckily it wasnt

I'm sorry that I cannot give you good advice, but I think that what Marissa&Stephen wrote made sense

Edited June 16, 2006 by beetee4ever

[mrs.jenjen 0]

What kind of mental illness are we talking about? Bipolar? Has he ever been sectioned?

I was voluntarily hospitalised for psychiatric problems in 2004 - just before my first trip on the VWP. I was never given a diagnosis, so I checked no on every box on the Visa waiver form, and the AOS forms. I got my green card, no problem.

I have heard however, that having been sectioned (which I wasn't) in the past makes you ineligable for entry into the US. I don't know how true this is.

Maybe you could call an immigration lawyer and talk it through with them? Many of the ones round here do free 30 minute consultations.....

[tigretigre 0]

Nope, he was never sectioned. He's been inpatient before, but never involuntarily.

As for a diagnosis, his was changed so many times it's almost become a joke. His treatment has been handled with shocking incompetence. Huge portions of his records are actually missing. He was referred to a sleep clinic and waited almost a year for an appointment before his doctor found out that the clinic closed.

He'd make a formal complaint, but he knows that nobody would believe him. It's hard to be taken seriously at all if you've had psych treatment, and anyway nobody would be willing to accept that the country's health care system could be that inept.

All this used to frustrate my fiance terribly, but it's now gotten to the point where it's comedy. It won't be funny, though, if he's denied a visa.

[tigretigre 0]

Nope, he was never sectioned. He's been inpatient before, but never involuntarily.

As for a diagnosis, his was changed so many times it's almost become a joke. His treatment has been handled with shocking incompetence. Huge portions of his records are actually missing. He was referred to a sleep clinic and waited almost a year for an appointment before his doctor found out that the clinic closed.

He'd make a formal complaint, but he knows that nobody would believe him. It's hard to be taken seriously at all if you've had psych treatment, and anyway nobody would be willing to accept that the country's health care system could be that inept.

All this used to frustrate my fiance terribly, but it's now gotten to the point where it's comedy. It won't be funny, though, if he's denied a visa.

[kitkat1 5]

AT THE INTERVIEW, the CO reviews all the forms, decides the mental disorder thing is old news and he's eligible...then notices my fiance entered the U.S. on his passport to visit me. He goes YOU BAD MAN, that was MISREPRESENTATION because you used to have a mental disorder! Visa denied, no waiver available because of the alleged "misrepresentation." Fiance says "I didn't mean to, I just didn't know what the hell the question was asking!" CO says "you will never enter the United States again! Hahahahaha!"

That is what I am worried about.

Agreed - this is a scary scenario. But I hope this information will calm you a bit --

Classes of aliens ineligible to receive visas http://www.travel.state.gov/visa/frvi/inel...ities_1364.html

(I) to have a physical or mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others

Not your fiance's case

or

(II) to have had a physical or mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior, or

Also not your fiance's case

Also, as I understand it, Misrepresentation in immigration-speak means:

Misrepresentation.-

(i) In general.-Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.

(ii) FALSELY CLAIMING CITIZENSHIP-

(I) IN GENERAL- Any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A ) or any other Federal or State law is inadmissible.

Not your fiance's case

I think you'll be fine : )

[tigretigre 0]

Because my fiance has a history of self-harm (and the physician will see the marks at the exam), he does fall into the class of potentially inadmissible aliens. Our position is that he is admissible because his self-harm is in remission (hasn't occured for two years). The guidelines for examination of aliens and immigrants on the CDC website outlines the criteria for remission of harmful behavior, and we think he can make a convincing claim that he's eligible based on that.

It is admittedly a stretch to claim that someone committed misrepresentation under the Act because he thought he was well enough to visit the U.S. on VWP, and in fact was well enough because at no time was anyone at risk and he got home safe and sound.

But you know what worrying can do...I get afraid that we'll be denied based on all kinds of wild stuff, or because they just won't "like" us.

[kitkat1 5]

Because my fiance has a history of self-harm (and the physician will see the marks at the exam), he does fall into the class of potentially inadmissible aliens. Our position is that he is admissible because his self-harm is in remission (hasn't occured for two years). The guidelines for examination of aliens and immigrants on the CDC website outlines the criteria for remission of harmful behavior, and we think he can make a convincing claim that he's eligible based on that.

It is admittedly a stretch to claim that someone committed misrepresentation under the Act because he thought he was well enough to visit the U.S. on VWP, and in fact was well enough because at no time was anyone at risk and he got home safe and sound.

But you know what worrying can do...I get afraid that we'll be denied based on all kinds of wild stuff, or because they just won't "like" us.

Well I doubt you have to worry about misrepresentation - this is usually applied in situations when someone says they are a USC and are not or used someone else's papers.

If you do end up in a situation where a waiver is necessary, keep this information in mind to keep you calm -the London consulate is said to have the highest waiver approval rate in the world not to mention fast processing. Really, I think you will be fine. Good luck and do you best to stay calm!

[Boiler 43,829]

Because my fiance has a history of self-harm (and the physician will see the marks at the exam), he does fall into the class of potentially inadmissible aliens. Our position is that he is admissible because his self-harm is in remission (hasn't occured for two years). The guidelines for examination of aliens and immigrants on the CDC website outlines the criteria for remission of harmful behavior, and we think he can make a convincing claim that he's eligible based on that.

It is admittedly a stretch to claim that someone committed misrepresentation under the Act because he thought he was well enough to visit the U.S. on VWP, and in fact was well enough because at no time was anyone at risk and he got home safe and sound.

But you know what worrying can do...I get afraid that we'll be denied based on all kinds of wild stuff, or because they just won't "like" us.

Well I doubt you have to worry about misrepresentation - this is usually applied in situations when someone says they are a USC and are not or used someone else's papers.

If you do end up in a situation where a waiver is necessary, keep this information in mind to keep you calm -the London consulate is said to have the highest waiver approval rate in the world not to mention fast processing. Really, I think you will be fine. Good luck and do you best to stay calm!

Mexico is higher, but still pretty good.

The issue is the answer to the question on the back of the I94-W.

The answer should have been Yes, the question is whether they will make an issue of it, I do not know, my assumption is probably not, but I have not seen an identical situation. Not sure what you can do about it at this stage. Worst case scenario is the waiver.

[kitkat1 5]

Mexico is higher, but still pretty good.

Really? I thought London was higher but that's fine with me - I'll be filing a 601 in Mexico as soon as my damn I-129F is approved! London's definitely up there and faster . . . .

[tigretigre 0]

I just have a really bad feeling

[ChristinaM 0]

You may have this resolved now, but if it helps...

I have a history of depression, including self-harm issues and suicide attempts. I ticked "No", because I had a pyschiatric evaluation which said I was fine.