NatashaB

We have our appointment scheduled for Friday for an L1a/L2 visa after the employer petition was approved. We're working through the DS160 and have come to the questions related to parents in the US. My husband's parents moved over to the US on a work visa many years ago (husband lived with them for a few years before coming back to the UK as an adult) and we're trying our best to pull together the documentation they might want and the dates they need, but it's somewhat unclear and I can see that there might be some questions asked about their status and what status my husband was on when he was over there. Worst case it seems we may need a waiver of ineligibility. I believe that is dealt with by the VCO - do you get to see them the same day if your visa application is denied/referred, or do you have to make a separate appointment later?

meauxna

What? Why do you think your husband might be ineligible? Did he violate status when he was in the US?

What are the specific form questions you're concerned with?

NatashaB

It may just be missing bits of paperwork. They moved over there and came back more than once, adjusted status whilst there... very confusing and husband doesn't actually have the full information, his dad is being a bit vague about it all. But he appears to have (completely unknowingly) overstayed. Not such an issue since he has passed the 'ban period' they impose on overstayers except that he has travelled on the VWP during that time which it seems he wasn't supposed to do.

meauxna

Ah, I see.

All I can tell you about the waiver process is, generally you can't file the waiver application until the visa has been denied.

NatashaB

Yep - just wondered if the waiver was something we could file whilst at the consulate if it came to that. I assume that it's something they will look into further after he submits the DS160 and do their own pre-screening so hopefully they will find all the info and it won't turn out to be an issue.

henryh

I think typically to file at the consulate you have to have the waiver application prepared and ready to hand in. In any case if he turns out to need a waiver, I think you should really consult an experienced immigration lawyer to help you prepare it.

Be very careful not to put anything false on the DS-160!

NatashaB

Thanks. We have an immigration lawyer through his employer. Hopefully they will be able to advise more once we can give them a clearer picture of all the different visas/ appeals. We certainly have no intention of lying.

henryh

That's good. Be sure to also not "lie" unintentionally

Be aware that while the company lawyer is very useful and most of the time they're all you need, they look out for the best interests of the company, not the employee.

ian-mstm

No, you don't.


The lawyer works for the employer, not for you. He doesn't care one bit what happens to you - his ONLY interest is to protect the company.

Ian

discoviking

Not only that, an immigration lawyer can also make a determination as to whether or not he would be eligible to file a waiver in the first place - and what kind of waiver is needed - in case the visa is denied.

For example, and I-601 would require a qualifying relative, while a non-immigrant waiver is discretionary and there really is no form to file.

I agree with henryh, a consultation with an immigration lawyer for a review of all the facts at hand is in definitely in order.

RPTNOTTM

So DiscoV,

Are you saying that if this guy is applying for an L1B or some such visa, that he need not apply for a waiver in this case- or because he specifically overstayed ? would this be the same if he had a CIMT on record also? Would he then need to apply for a Waiver then????.....

Why is nothing straight forward when trying to get into the USA!

NatashaB

I read it as there may be no point in applying for the waiver at all - since it may be a flat out visa denial and no chance of reversing that. I thought the interviewer we saw on the day has the power to recommend a waiver (which we then have to apply for and get approved).

I found this online:

The INA provides for waivers of ineligibility for visas and inadmissibility to the US for most nonimmigrant visa classifications. The statute confers upon consular officers and the Secretary of State the important discretionary function of recommending waivers of ineligibility to DHS which has sole authority for granting or denying waivers. If a waiver is not recommended to DHS, a waiver may not be granted and the nonimmigrant visa sought may not be issued.

ian-mstm

Why? Because the US doesn't care whether you get in or not. US immigration law is written specifically to keep non-USCs out of the US unless you fall within a few very narrowly-defined exceptions.

Ian

ian-mstm

It's a shame that you don't understand what you've quoted. If a visa has been denied, you can always submit a waiver. Once the waiver is submitted, THEN a decision is made whether or not to recommend approval. That decision is NOT made while you're sitting there in front of the guy. If the waiver has merit, a recommendation is made to DHS for approval. At that point in time, the bit you bolded comes into play.

In simple terms, a waiver can't be recommended IF a waiver is never submitted.

Ian

discoviking

I don't know if OP needs a waiver or not. Whether or not he has a ban for a previous overstay would depend on when the overstay occurred, for how long, how old he was, and when he left the US - for starters.

There is also the issue of eligibility as far as waivers are concerned. Not everyone are eligible to file one, it all depends on the specific circumstances.

Thus the need for a case review by a qualified immigration attorney.

If you want to know more about waivers, visit www.immigrate2us.net