Visa denied at interview due to overstay in USA

[desert_fox 32]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Edited August 28, 2009 by desert_fox

[jpaula 20]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Do you know where in the law this is spelled out? It is not listed as grounds for inadmissibility in the immigration code. I think that is the confusion.

[jpaula 20]

OK, I think it makes you inadmissible under 212(a)(6)(B) (grrr...is showing the shades emoticon rather than a "B." I give up on trying to fix it.)

Edited August 28, 2009 by jpaula

[spookyturtle 9,465]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Unfortunaley, all the Consulates do not follow the same set of rules. Some enforce seldom invoked sections of the law while others do not. It is not consistent across the board.

[jpaula 20]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Unfortunaley, all the Consulates do not follow the same set of rules. Some enforce seldom invoked sections of the law while others do not. It is not consistent across the board.

Very true. Kind of odd that so few enforce this one (and that it then gets by DHS so frequently).

[desert_fox 32]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Unfortunaley, all the Consulates do not follow the same set of rules. Some enforce seldom invoked sections of the law while others do not. It is not consistent across the board.

Very true. Kind of odd that so few enforce this one (and that it then gets by DHS so frequently).

The issue is not whether the consulate accepts it or not. Im sure they will gladly take your money, or some may do you a favor by not accepting it. The Consulate service does not ajudicates these waivers but pass it on to the local field office of DHS that has jurisdiction fo that particular country.

The DHS is not the Dept of State. They can only follow the law and predendents to the law that exist, and would apply it to all waivers they have from the various countries within their jurisdicion.

What discresional authority they have...I would have no idea, but it cannot violate the law and their regulations. This is a complex issue and you need to talk to a certified immigration attorney and not the advice of a local practioner of family law. This guy will gladly take your money and file whatever document you like.

[spookyturtle 9,465]

The question was why Rio would not let him file a waiver. Pretty valid question, actually, as many people file waivers for illegal presence every day. I think the answer, as pointed out in this thread, is that some Consulates, Rio among them, will not let you file a waiver if you have skipped an immigration hearing. Good information to know and to share if anyone else is in a similar situation and will be going through one of the Consulates with this policy.

To the OP...Have you contacted a Congressman? It may be that you are stuck with the policy of the Consulate you go through, but it seems logical to me that if this is being applied capriciously or at some Consulates and not others, you may be able to get a Congress person to help force the Consulate to take the waiver. The waiver goes to DHS after all, not to State.

The US Consulate General is an agency of the US State Dept. They do not make their own local rules where the law clearly spells out the conequenques if you do not show up at a removal proceeding, that youm are toast. It is spelled out in the court order, and by the law.

He probably thought by marring a US Citizen that all problems would go away....bad assumption.

She coula use an attorney that is certified in Immigration Law, who could explain all of this to her.

Do the ban a try again.

Unfortunaley, all the Consulates do not follow the same set of rules. Some enforce seldom invoked sections of the law while others do not. It is not consistent across the board.

Very true. Kind of odd that so few enforce this one (and that it then gets by DHS so frequently).

The issue is not whether the consulate accepts it or not. Im sure they will gladly take your money, or some may do you a favor by not accepting it. The Consulate service does not ajudicates these waivers but pass it on to the local field office of DHS that has jurisdiction fo that particular country.

The DHS is not the Dept of State. They can only follow the law and predendents to the law that exist, and would apply it to all waivers they have from the various countries within their jurisdicion.

What discresional authority they have...I would have no idea, but it cannot violate the law and their regulations. This is a complex issue and you need to talk to a certified immigration attorney and not the advice of a local practioner of family law. This guy will gladly take your money and file whatever document you like.

The Consulate makes the initial determination as to waiver eligibility, not DHS. DHS adjudicates the waiver and is capable of overturning a consulate decision for eligibility. According to the OP, they were not given the chance to submit a waiver. Nothing to do with DHS at this point, it's all DOS and their application of the law. And it varies from consulate to consulate. It is by no means standard throughout the system.

There is information missing on the case posted here. They had to be given an exact reason and section of the law why they were banned. Thus far that information has not been posted.

[jpaula 20]

I think the point is that, while we would like to think that these laws are applied equally by 1) each Consulate and 2) each regional DHS office, neither is the case. Many Consulates and corresponding regional DHS offices have, in the recent past, not imposed this bar for this particular offense. No idea why not, if policy has recently changed, if some DHS offices are more on the ball than others etc. But I do think that if the Consulate decides to impose the 5 year bar in these cases (and only a few Consulates seem to), there is not much you can do about it. Unfortunately, you cannot send a waiver directly to DHS even though they are the ones who adjudicate it.

It makes it hard to give advice to those who may face this. The best one can say is that you should be prepared with a waiver and also be prepared to have the Consulate refuse to take it.

[emt103c 10]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

[jpaula 20]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

But, in the cases where the Consulate does accept the waiver and sends it along to DHS, has DHS been enforcing the bar? I know of several cases (all more than a year old and most through Rome) where people who have missed hearings and had deportation orders placed in absentia, were eventually deported and subsequently had waivers approved. Perhaps they were able to prove that they did not receive proper notice of the hearing?

Not harsh at all. If it is the law and it is being consistently enforced people should be aware of it.

[spookyturtle 9,465]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

But the OP said the ban was for 3 years. The one you are speaking of is 5 years. I am thinking the OP made a mistake saying 3 years and that it is exactly what you say it is. The 3 year overstay ban is waivable.

[spookyturtle 9,465]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

But, in the cases where the Consulate does accept the waiver and sends it along to DHS, has DHS been enforcing the bar? I know of several cases (all more than a year old and most through Rome) where people who have missed hearings and had deportation orders placed in absentia, were eventually deported and subsequently had waivers approved. Perhaps they were able to prove that they did not receive proper notice of the hearing?

Not harsh at all. If it is the law and it is being consistently enforced people should be aware of it.

If the consulate did say you were eligible for the waiver, it is still possible for DHS to enforce the bar. They probably wouldn't adjudicate the waiver, they would state that no waiver was available.

[hopephilly 21]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

i know an algerian who lives in france, he was in the us with b1/b2 visa but the immigration gave him in the us 24 days, usually he gets 6 months, he had to overstay but less then 180 days and he came back. now he has to go to NY with a b1 visa with his boss to negociate some business with american company . he worrys to apply for a visa because he thinks that in the consulate they won't give him the visa .

the immigration did not put any thing on his passport, he left the us without any problem.

an you tell him what are the consequences please?

thank you

[Boiler 44,874]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

i know an algerian who lives in france, he was in the us with b1/b2 visa but the immigration gave him in the us 24 days, usually he gets 6 months, he had to overstay but less then 180 days and he came back. now he has to go to NY with a b1 visa with his boss to negociate some business with american company . he worrys to apply for a visa because he thinks that in the consulate they won't give him the visa .

the immigration did not put any thing on his passport, he left the us without any problem.

an you tell him what are the consequences please?

thank you

He no longer has a visa, the old one was automatically revoked when he overstayed.

His chance of another one will probably depend on the reason he overstayed and any documentation he has to support that.

Yopu do not go through Immigration when leaving, only when arriving.

[aaron2020 11,651]

The ban is included in the INA from 1996. It has always been there, but consulates basically ignored it until last year and now only some are observing it. Technically, all should be enforcing it, but they are not. She is NOT ELIGIBLE to submit the waiver. It is not the consulate's fault, it is actually the law. Anyone who tells you they will submit the waiver before that five years is up is lying and stealing your money. I am sorry to be harsh, but it is reality.

i know an algerian who lives in france, he was in the us with b1/b2 visa but the immigration gave him in the us 24 days, usually he gets 6 months, he had to overstay but less then 180 days and he came back. now he has to go to NY with a b1 visa with his boss to negociate some business with american company . he worrys to apply for a visa because he thinks that in the consulate they won't give him the visa .

the immigration did not put any thing on his passport, he left the us without any problem.

an you tell him what are the consequences please?

thank you

It's very likely that he will be refused entry into the US at the POE. There is no inspection by immigration on the way out of the US, so that is why nothing is stamped in his passport about his overstay. Best to tell his boss about his situation before attempting to buy a plane ticket.