Alex Inupa

My friend who is a Canadian permanent resident and a phd student (F1) in US
married in Canada..
When his wife applied for F-2 she was rejected without any inspection. Is it
legal? (His wife is neither Canadian or US Citizen)
By the way, does this rejection affect her next application in her home
country?

Thank you for the comments,
A!

Ingo Pakleppa - See Web Site For Email

On Wed, 05 Nov 2003 03:53:30 +0000, Alex Inupa wrote:

    > My friend who is a Canadian permanent resident and a phd student (F1) in
    > US married in Canada..
    > When his wife applied for F-2 she was rejected without any inspection.
    > Is it legal? (His wife is neither Canadian or US Citizen)

Yes. Consulates can reject a visa application from anybody who is neither
a local citizen nor a local resident without giving any reason. Most
consulates actually do that. If the wife was a Canadian permanent
resident, then the consulate probably couldn't reject the visa, but could
still deny it (the difference being that a denial a decision, while a
rejection is a statement that "we don't even allow you to try here").

    > By the way, does this rejection affect her next application in her home
    > country?

A rejection shouldn't, but a denial may indeed cause problems. Note that
the situation is a bit difficult as it is; even without a previous
application in Canada, she may have problems getting a US visa simply
because of her life circumstances.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539, H.R. 832 and S. 1510. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.

Alex Inupa

Thank you ;-))

"Ingo Pakleppa - see web site for email" <[email protected]> wrote in message
news[email protected]...
    > On Wed, 05 Nov 2003 03:53:30 +0000, Alex Inupa wrote:
    > > My friend who is a Canadian permanent resident and a phd student (F1) in
    > > US married in Canada..
    > > When his wife applied for F-2 she was rejected without any inspection.
    > > Is it legal? (His wife is neither Canadian or US Citizen)
    > Yes. Consulates can reject a visa application from anybody who is neither
    > a local citizen nor a local resident without giving any reason. Most
    > consulates actually do that. If the wife was a Canadian permanent
    > resident, then the consulate probably couldn't reject the visa, but could
    > still deny it (the difference being that a denial a decision, while a
    > rejection is a statement that "we don't even allow you to try here").
    > > By the way, does this rejection affect her next application in her home
    > > country?
    > A rejection shouldn't, but a denial may indeed cause problems. Note that
    > the situation is a bit difficult as it is; even without a previous
    > application in Canada, she may have problems getting a US visa simply
    > because of her life circumstances.
    > --
    > Remember, I am strictly a layperson without any legal training. I
encourage
    > everybody to seek competent legal counsel rather than relying on usenet
    > newsgroups.
    > Please support H.R. 539, H.R. 832 and S. 1510. More information at
    > http://www.kkeane.com/lobbyspousal-faq.shtml
    > Please visit my new FAQ at http://www.kkeane.com (always under
construction)
    > My email address in usenet posts is now invalid for spam protection. See
    > my Web site for information on how to contact me.
    > Please feel free to enjoy some of my photographs at my Web site
    > http://www.ingopakleppa.com ! Comments are welcome.

Pl

Hi Ingo,

Could you please give more advice here on a very similar
topic? My cousin is in the US on F1 and in good standing with
valid F1 status. She received her original multiple entry F1 visa in
Russia (her home country).

When the visa expired she went to Canada to apply for a new visa
in order to travel home in a few months. She planned to go home
for a week only and figured to have visa issues settled before the
trip. Many people she knew got their visas this way. Perhaps, the
consul had a bad day and she got a 214(b) refusal. So, she ended
up still with no visa but with a rejection record, a far worse
situation than if she just went home and applied in Moscow. The
refusal must be recorded in DoS computer and she also got that
"Visa Application Received" stamp in her passport with the date
and "214(b)" handwritten on the stamp.

The consular officer told her some obvious stuff that "this consulate
in Canada is not in a position to evaluate your ties to your home
country and we suggest that you reapplies in your home country". She
received a standard preprinted piece of paper entitled something like
"rejection explanation" with the same stuff written there. There
is some logic in this "explanation", but in view of the fact the
everyone
or almost everyone had their visas renewed under this circumstances at
that time, it was obvously a bunch of crap. The true reason of the
denial,
be it the hard time the consul had with his wife that morning, his
not liking of her face or whatever doesn't really matter anymore.

Luckily, this happened before the change in regulations instituted
post 9/11. According to the new regulation all persons who visit a
U.S. consulate in Canada and submit an application there for a new
visa can return to the US only if the new visa is granted. This new
regulations ended a very popular, convenient and risk-free strategy
for obtaining a U.S. visa. What it probably means that your I-94 is
taken away now in the US consulates in Canada.

Anyway, since this happened with her before this regulation
(her old I-94 remained stapled in her passport where
they put a denial stamp on one of the end pages), she returned to
the US on that old I-94 and expired visa without any trouble.
Since that time, she is scared to leave the US until she
graduates, gets a job and H-1B status, at which point article
214(b) (close ties to the home country to prove the lack of
immigration intent) becomes irrelevant.

The first question, please confirm that 214(b) is irrelevant to H-1B
application, at least legally speaking. Perhaps, the real practice
varies from consulate to consulate.

Now the second question: if she goes to Canada now for a couple of
weeks to visit a friend, is she likely to encounter any problems
upon reentry to the US? She still has her old expired visa and her
I-94, her I-20 is good and the travel signature on I-20 is recent.
The only difference is a not so easy to notice stamp in an obscure
page of the passport and the record in the computer. BUT THE
STAMP IS DATED and it is clear from it that it was received
prior to the change of regulations. So, can the Immigration refuse
her re-entry?

And this raises the third question. It is well known that until
recently people who were refused the new H or F visas in Canada
were able to travel back to the US safely. Was it because
there was some law that allowed that, or it was just a common
practice that came from the fact that I-94 simply was not taken
away in US consulates in Canada?

Thank you in advance for your opinion,
PL


Ingo Pakleppa - see web site for email <[email protected]> wrote in message news:<[email protected]>. ..
    > On Wed, 05 Nov 2003 03:53:30 +0000, Alex Inupa wrote:
    >
    > > My friend who is a Canadian permanent resident and a phd student (F1) in
    > > US married in Canada..
    > > When his wife applied for F-2 she was rejected without any inspection.
    > > Is it legal? (His wife is neither Canadian or US Citizen)
    >
    > Yes. Consulates can reject a visa application from anybody who is neither
    > a local citizen nor a local resident without giving any reason. Most
    > consulates actually do that. If the wife was a Canadian permanent
    > resident, then the consulate probably couldn't reject the visa, but could
    > still deny it (the difference being that a denial a decision, while a
    > rejection is a statement that "we don't even allow you to try here").
    >
    > > By the way, does this rejection affect her next application in her home
    > > country?
    >
    > A rejection shouldn't, but a denial may indeed cause problems. Note that
    > the situation is a bit difficult as it is; even without a previous
    > application in Canada, she may have problems getting a US visa simply
    > because of her life circumstances.
    >
    > --
    > Remember, I am strictly a layperson without any legal training. I encourage
    > everybody to seek competent legal counsel rather than relying on usenet
    > newsgroups.
    >
    > Please support H.R. 539, H.R. 832 and S. 1510. More information at
    > http://www.kkeane.com/lobbyspousal-faq.shtml
    >
    > Please visit my new FAQ at http://www.kkeane.com (always under construction)
    >
    > My email address in usenet posts is now invalid for spam protection. See
    > my Web site for information on how to contact me.
    >
    > Please feel free to enjoy some of my photographs at my Web site
    > http://www.ingopakleppa.com ! Comments are welcome.

Ingo Pakleppa - See Web Site For Email

On Sun, 09 Nov 2003 01:40:39 -0800, PL wrote:

    > Hi Ingo,
    >
    > Could you please give more advice here on a very similar topic? My
    > cousin is in the US on F1 and in good standing with valid F1 status. She
    > received her original multiple entry F1 visa in Russia (her home
    > country).
    >
    > When the visa expired she went to Canada to apply for a new visa in
    > order to travel home in a few months. She planned to go home for a week
    > only and figured to have visa issues settled before the trip. Many
    > people she knew got their visas this way. Perhaps, the consul had a bad
    > day and she got a 214(b) refusal. So, she ended up still with no visa
    > but with a rejection record, a far worse situation than if she just went
    > home and applied in Moscow. The refusal must be recorded in DoS computer
    > and she also got that "Visa Application Received" stamp in her passport
    > with the date and "214(b)" handwritten on the stamp.
    >
    > The consular officer told her some obvious stuff that "this consulate in
    > Canada is not in a position to evaluate your ties to your home country
    > and we suggest that you reapplies in your home country". She received a
    > standard preprinted piece of paper entitled something like "rejection
    > explanation" with the same stuff written there. There is some logic in
    > this "explanation", but in view of the fact the everyone
    > or almost everyone had their visas renewed under this circumstances at
    > that time, it was obvously a bunch of crap. The true reason of the
    > denial,
    > be it the hard time the consul had with his wife that morning, his not
    > liking of her face or whatever doesn't really matter anymore.
    >
    > Luckily, this happened before the change in regulations instituted post
    > 9/11. According to the new regulation all persons who visit a U.S.
    > consulate in Canada and submit an application there for a new visa can
    > return to the US only if the new visa is granted. This new regulations
    > ended a very popular, convenient and risk-free strategy for obtaining a
    > U.S. visa. What it probably means that your I-94 is taken away now in
    > the US consulates in Canada.
    >
    > Anyway, since this happened with her before this regulation (her old
    > I-94 remained stapled in her passport where they put a denial stamp on
    > one of the end pages), she returned to the US on that old I-94 and
    > expired visa without any trouble. Since that time, she is scared to
    > leave the US until she graduates, gets a job and H-1B status, at which
    > point article 214(b) (close ties to the home country to prove the lack
    > of immigration intent) becomes irrelevant.
    >
    > The first question, please confirm that 214(b) is irrelevant to H-1B
    > application, at least legally speaking. Perhaps, the real practice
    > varies from consulate to consulate.

Yes. INA 214(b) actually explicitly excludes H-1Bs.

    > Now the second question: if she goes to Canada now for a couple of weeks
    > to visit a friend, is she likely to encounter any problems upon reentry
    > to the US? She still has her old expired visa and her I-94, her I-20 is
    > good and the travel signature on I-20 is recent. The only difference is
    > a not so easy to notice stamp in an obscure page of the passport and the
    > record in the computer. BUT THE STAMP IS DATED and it is clear from it
    > that it was received prior to the change of regulations. So, can the
    > Immigration refuse her re-entry?

No. Well, they can deny her reentry for any reason at all, but I don't
think the stamp will make a difference.

    > And this raises the third question. It is well known that until recently
    > people who were refused the new H or F visas in Canada were able to
    > travel back to the US safely. Was it because there was some law that
    > allowed that, or it was just a common practice that came from the fact
    > that I-94 simply was not taken away in US consulates in Canada?

It was an explicit policy (not a law, but rather a regulation) that has
been changed since then.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539, H.R. 832 and S. 1510. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.

pl7

>Yes. INA 214(b) actually explicitly excludes H-1Bs.


OK, that's good that the legal answer is favorable. Do you think that the existense of the 214(b) denial may affect the H-1B application in real life? Of course, she can be denied for any reason and for no reason anyway but how bad is to have a history of 214(b) based on experiences posted to this forum or other known cases? I haven't been here long enough.

    > Now the second question: if she goes to Canada now for a couple of weeks
    > to visit a friend, is she likely to encounter any problems upon reentry
    > to the US?

    No. Well, they can deny her reentry for any reason at all, but I don't
think the stamp will make a difference.

    > And this raises the third question. It is well known that until recently
    > people who were refused the new H or F visas in Canada were able to
    > travel back to the US safely. Was it because there was some law that
    > allowed that, or it was just a common practice that came from the fact
    > that I-94 simply was not taken away in US consulates in Canada?

    It was an explicit policy (not a law, but rather a regulation) that has
been changed since then.

Is there a way to see the old regulation. Do you think having a copy on hand may help on the border should the problem arise?

Thanks a lot for your help.

Ingo Pakleppa - See Web Site For Email

On Tue, 11 Nov 2003 09:19:01 +0000, pl7 wrote:


    >>Yes. INA 214(b) actually explicitly excludes H-1Bs.
    >
    > OK, that's good that the legal answer is favorable. Do you think that
    > the existense of the 214(b) denial may affect the H-1B application in
    > real life? Of course, she can be denied for any reason and for no reason
    > anyway but how bad is to have a history of 214(b) based on experiences
    > posted to this forum or other known cases? I haven't been here long
    > enough.

I wouldn't expect any problems for an H-1B.

    > It was an explicit policy (not a law, but rather a
    > regulation) that has
    > been changed since then.
    >
    > Is there a way to see the old regulation. Do you think having a copy on
    > hand may help on the border should the problem arise?

Don't bother. This change was very widely publicised in immigration law
circles, and I would be extremely surprised if any CBP officer wasn't
aware of the change, except maybe for a brand-new rookie. A supervisor
should be able to sort this out easily.

Also, remember that 90% of that regulation is still in force. You can
still go to Canada or Mexico and return within 30 days. The only thing
that has changed is that you can't do that any more if you are applying
for a visa.

--
Remember, I am strictly a layperson without any legal training. I encourage
everybody to seek competent legal counsel rather than relying on usenet
newsgroups.

Please support H.R. 539, H.R. 832 and S. 1510. More information at
http://www.kkeane.com/lobbyspousal-faq.shtml

Please visit my new FAQ at http://www.kkeane.com (always under construction)

My email address in usenet posts is now invalid for spam protection. See
my Web site for information on how to contact me.

Please feel free to enjoy some of my photographs at my Web site
http://www.ingopakleppa.com ! Comments are welcome.