unfair B2 visa refusal

[heartbroken2 0]

On Feb 23, 2011 I got denied a B2 visa at the US consulate in Kyiv, Ukraine on the grounds of Section 212(a)(9)(b)(I)(II) (10 year bar due to over a year of unlawful presence).

Let me explain the background to my situation now...

In July of 2004 I was lawfully admitted to the US on an F1 student visa to go to a community college. Upon graduating from the college I transfered to university in July of 2006 (for which I obtained another F1 visa at a consulate in Kyiv with a D/S on my I-94). I successfuly completed my junior year but stopped attending school in September of 2007. I left the US on Jan 18 of 2009. I have never worked in the US, was never deported, never arrested and never tried to adjust my status.

I do not believe that the US immigration laws were applied correctly in my case. I derive that from clause (b)(1)(E)(ii), page 25 of USCIS Director Donald Neufeld's Memorandum dated May 6, 2009, written as a guidance for determining unlawful presence and released by USCIS. Also, please, pay attention to clause (2) on page 9 and example 3 on page 10. Here is the link:

http://www.laborimmigration.com/wp-content/uploads/2009/05/neufeld-memorandum-may-6-2009.pdf

Though I was "out of status" for over a year, I have never started accruing "unlawful presence", which would result in a 3 or 10 year bar under section 212(a)(9)(b)

THE QUESTION IS....what do I do about it?? How do I go about proving that the consular officer did not apply the USCIS policy correctly in relation to my case. How can I cancel that 10 year bar...it is such a blemish even when traveling to other countries....Is it possible to file a motion to reconsider to the Consulate? Or should I just schedule another visa interview and print out that Memorandum to show that their decision was incorrect?

Listen, I've stayed in the US for almost 5 years. I've made a lot of friends and I do love that country. I came back on my own over 2 years ago, have a great job here and do not plan on immigrating to the US. However, I do miss the US so much and the thought of never being able to come back for a visit or having to file some waiver every time is unbearable.....

I do not have a RIGHT to enter the US as it is a priviledge not a right, but I do have a RIGHT to be treated fairly and in accordance with the US immigration laws. And just because some guy at the Consulate didn't feel like carefully reviewing my case or was not experienced enough to apply the regulations correctly, I can;t allow this to ruin my life. I need to fight....

[Darnell 8,478]

usually, when ppl are denied a tourist visa -

they apply again.

what are your plans for applying again ?

[canadian_wife 1,823]

Failure to maintain status can result in arrest, and violators may be required to leave the United States. Violation of status also can affect the prospect of readmission to the United States for a period of time. Most people who violate the terms of their status are barred from lawfully returning to the United States for years.

Recognize and Avoid Status Violations

By violating the requirements that govern your immigration status, you may jeopardize your ability to remain in the United States as a student or exchange visitor. Examples of violations include the following:

Failure to enroll by the date specified by your school or exchange visitor program.

Unauthorized employment during your stay.

Failure to leave the United States following completion of your course, exchange visitor program, or program-related employment.

For academic students (visa category F-1): Failure to maintain a full course load without prior authorization for a reduction from your designated school official.

http://www.ice.gov/sevis/sevisfactsheet.htm

It seems you violated the terms of your visa by not maintaining full time status....for 2 years. So it sounds like from the ICE site I just cited, the bar was correct.

Good luck

[Deputy Purple 1,294]

Also, please, pay attention to clause (2) on page 9 and example 3 on page 10.

Though I was "out of status" for over a year, I have never started accruing "unlawful presence", which would result in a 3 or 10 year bar under section 212(a)(9)(b)

The example you cite states "Neither USCIS nor an IJ makes a finding that the Alien was out of Status", I read that as being specific to the example not a general statement that having D/S as authorized stay makes such a fact in your case.

If the school you attended did as they are required and notified USCIS when you stopped then USCIS would have determined that you are in fact out of status and you would have then begin accruing illegal presence.

[heartbroken2 0]

The example you cite states "Neither USCIS nor an IJ makes a finding that the Alien was out of Status", I read that as being specific to the example not a general statement that having D/S as authorized stay makes such a fact in your case.

If the school you attended did as they are required and notified USCIS when you stopped then USCIS would have determined that you are in fact out of status and you would have then begin accruing illegal presence.

The school reports its students to SEVIS. However, SEVIS does not report status violators to USCIS unless it receives a request from appropriate agency. In order for an alien with a D/S to start accruing "unlawful presence" for the purpose of section 212(a)(9)(b) (3/10 year bar) there needs to be a formal ruling made by either USCIS (and they usually make that finding while adjucating a request for a benefit or a change of status, which I never applied for) or an immigration judge (in deportation or exclusion proceedings, which never happened to me either). IN EITHER CASE...the unlawful presence clock for those with D/S only starts ticking from the day a formal ruling had been made (as opposed to aliens with a specific date on their I-94 where unlawful presence starts immediately after expiration of that date).

But lets for a second pretend that the USCIS made that ruling when the school reported me to SEVIS. I know for a fact that the school did not report me until February of 2008. I explained to them the situation as to why i couldn't complete Fall semester 2007 and they said I was fine and allowed to take a semester off, as long as I registered for spring semester by February 2008, otherwise they might have to report me. So that would still leave me in 3 year bar, as opposed to a 10 year bar (less than a year of unlawful presence)

That memorandum is written by the USCIS director to consolidate the policy on determining unlawful presence and as a guide for immigration adjucators. It clearly states in clause (b)(1)(E)(ii) that for the purpose of Section 212(a)(9)(b) for those admitted with D/S unlaful presence does NOT begin on the date of the status violation. It begins from the date of a formal ruling by either the USCIS or the immigration judge. And it cannot be made in retrospect (such as with the case of a consular officer)

[heartbroken2 0]

Failure to maintain status can result in arrest, and violators may be required to leave the United States. Violation of status also can affect the prospect of readmission to the United States for a period of time. Most people who violate the terms of their status are barred from lawfully returning to the United States for years.

Recognize and Avoid Status Violations

By violating the requirements that govern your immigration status, you may jeopardize your ability to remain in the United States as a student or exchange visitor. Examples of violations include the following:

Failure to enroll by the date specified by your school or exchange visitor program.

Unauthorized employment during your stay.

Failure to leave the United States following completion of your course, exchange visitor program, or program-related employment.

For academic students (visa category F-1): Failure to maintain a full course load without prior authorization for a reduction from your designated school official.

http://www.ice.gov/sevis/sevisfactsheet.htm

It seems you violated the terms of your visa by not maintaining full time status....for 2 years. So it sounds like from the ICE site I just cited, the bar was correct.

Good luck

The US immigrattion laws (as any laws) are tricky. And generally the INA (Immigration and Nationality Act) protects most students from inadmissibility bars.

As the Memorandum specifies, it is important to remember that, while related, "unlawful status" and "unlawful presence" are not the same thing. Those who are unlawfully present are also deemed to be in unlawful status. However, one may be in unlawful status and never begin to accrue unlawful presence. Unlawful status by itself does not result in a 3/10 year bar for the purpose of Section 212(a)(9)(b). USCIS director Donald Neufeld explains such cases in his Memorandum dated May 6, 2009 on consolidating the policy regarding unlawful presence. Read page 9, 10 and 25 of the Memorandum...I provided the link

[heartbroken2 0]

usually, when ppl are denied a tourist visa -

they apply again.

what are your plans for applying again ?

I don't know if I can....I mean, sure, I can apply again. But since I fell under the "class of aliens inelegible to recieve a visa" because of the incorrect application of the USCIS policy by the consular officer and was given the 10 year bar the first time, it will probably happen to me again. I am not sure what to do now. How do I prove the decision was wrong? Does it need to be done through filing a motion to reconsider (I see such motions being filed to the USCIS but my case is a nonimmigrant visa and a decision was made by the consulate and I'm not sure how to proceed with filing to the consulate). Or maybe I should apply again and try to prove that I am not inadmissibly at the next interview?

[Darnell 8,478]

I'd take the latter tact, always.

[Harsh_77 718]

you were out of status when you stopped going to school.

Does not matter if you worked or did not work - F1 conidtions are plain and simple you have to be enrolled in school (fulltime).

The day you stopped going to school you were unlawfully (illegallY) in the country.

You cannot change the decision - its already been made.

Edited February 28, 2011 by Harsh_77

[slider100 8]

I understand that you have enough evidence to support your claim but there is no way to convince the CO otherwise!

From what I understand from your post is that you failed to "maintain your full time" student status while on a "F-1 visa" and thus you got the decision at the Consulate. That is one of the most important clauses, I have friends on F-1 and I know how stringent the laws are.

I hope you get the visa next time you apply, Good luck!

KnR aka slider100

[belinda63 3,038]

Even if you do win the battle on a technicality you have lost the war as it is highly doubtful you would be issued a visitor visa to a country you just recently left after remaining in the country on a student visa without being a student for more than one year. You have proven you have strong ties to this country other than attending school and that you have a tendency to "violate the spirit" of the visa.

[heartbroken2 0]

I want to say, good news! A couple of days ago I got a call from the US consulate. A lady told me that the section under which I got denied, 212(a)(9)(b), (10 year bar) no longer applies to me and that I am welcome to reapply for US visa at any time now. That's almost 3 weeks after I got denied and I hadn't taken any action since (except talk to lawyers, most of whom disagreed with me saying that the bar WAS applied correctly). I found that a little strange, since I thought the consular's decision was final when it came to nonimmigrant visas. I guess not...I don't know what made them review my case and reverse their decision. Perhaps they send each case deemed inadmissible to a higher authority to affirm that an alien is in fact inadmissible. What are your thoughts? In either case, I am happy they realized their mistake and that I did all the tedious reasearch myself and didn't listen to all the lawyers and people who told me I was wrong and should be applying for a waiver. Know your rights! See, this is why I love the US and have tremendeous respect for that country...STRICT but FAIR.

[Boiler 45,657]

Even if you do win the battle on a technicality you have lost the war as it is highly doubtful you would be issued a visitor visa to a country you just recently left after remaining in the country on a student visa without being a student for more than one year. You have proven you have strong ties to this country other than attending school and that you have a tendency to "violate the spirit" of the visa.

I would also anticipate that a non immigrant visa will be refused. I also do not think you have a ban. So am not surprised with the U turn.

[bettermuscome 12]

good luck with your endeavor as u did violate the law by not leaving when u were not enrolled in school. I myself withdrew from my school in 2009 and left the us 2 days after as i did not want to violate any laws....good luck to you

[canadian_wife 1,823]

Know your rights! See, this is why I love the US and have tremendeous respect for that country...STRICT but FAIR.

Know your rights? I'm sorry, but you do not have a right to visit the US

I'm glad you were victorious but note that the visa wasn't issued, you still have to re-apply and your overstay will come back then as well

Good luck