coopa_troopa

Thought a new thread would be best, following on from my "will my family be able to come back"

Passports arrived today with CANCELLED WITHOUT PREJUDICE stamped in them and a letter accusing the petitioner of misrepresentation. The petition and all supporting docs are being returned to USCIS with a recommendation they revoke the petition.

We are all devastated. Never saw this coming. And it's the same petition that flew through the embassy first time round.

I'm still in shock and can't stop crying. My son is absolutely stunned. What is he supposed to say to his 5 year old who is excited about getting back to his school and all his friends.

They have lost everything. They have no home, no jobs, hardly any clothes, and can't even come back to collect and pack up their possessions.

What a nightmare

CAProgrammer

That is terrible news!

I'm no legal expert but from watching legal TV shows I think the words "without prejudice" means something legally. I'm sure someone who is more knowledgeable will give you some meaningful advice soon.

But I think it was on Judge Judy when the person who was suing someone else didn't have some evidence she said "I'm dismissing your case without prejudice. You will be able to come back to this court or go to another court when you have the required evidence". So maybe that is something positive...

Maybe the petitioner can appeal against the decision and provide evidence that they weren't misrepresenting anything? I'm not really sure what I'm talking about here as I have no experience with what your family has just gone through.

Whatever happens, I hope things work out for your son and his family!

Trixie_b

So sorry... there will be an answer i'm sure.

Noorah101

I'm so sorry to hear the news.

But I will ask that you also post what the petition was for, what kind of visa. That way others won't have to go find your other thread to read up on the case.

Thanks and hope you can get an answer soon. In the meantime, if you are in the USA, can you send some of their things back, so they'll have clothes and some other belongings? Maybe they can stay with friends or other family members until it gets sorted out.

Rene

coopa_troopa

Thanks Rene. It's L1 and L2 visas, in their second year, first renewal was granted about 6 months ago.

I've been doing a search on "cancelled without prejudice" and note some people have entered on VWP with this same wording stamped across their expired visas. Could this be an option for them, so they could at least come get some of their stuff and pay some bills?

There seems to be a difference of opinion on whether a visa cancellation should be declared on ESTA. And I know it's still a denial, as they went for a visa and came out empty-handed, but does this ALWAYS result in being denied entry at POE?

Noorah101

It might result in a denial of ESTA. But I don't know for sure. What does your son's immigration lawyer have to say about the situation?

Rene

S Folinsky

Most actions in immigration law other than final orders of removal are essentially "without prejudice."

As you note the visa petition had been approved with a validity date until 2013. This validity was "without prejudice" to the visa petition being revoked. So, here is a perfect example of a case of the power of "without prejudice." A two edged sword.

Now lets say that USCIS revalidates the petition and sends it back to the consulate -- new visas can be then issued.

BTW, I took a quick glance at this and prior postings -- other than the fact that L-1 and L-2 visas were involved, you have not disclosed the nature of the underlying petitions. It is not that I am unsympathetic, its just that you have focused on issues which are legally irrelevant.

Your son and his employer should talk to the lawyers.

coopa_troopa

Forgive me. I'm just the "old girl" LOL and don't really know what you mean by 'the nature of the underlying petitions'

All I know, as a mother and grandmother, is that I waved off my family at the airport when they were leaving for their trip, never thinking for one minute they wouldn't be back as planned.

I think my son is staying on in the UK for the very reason he has much to discuss with the men in suits on the other side of the pond, the ones in the UK side of things. I don't get too deeply involved in that sort of thing. No doubt he thinks "you wouldn't understand Mother"

It's my daughter-in-law who mostly tells me what's going on.

I just want my little guy back and it helps me to share my worries on here.

crg

I don't think opinion comes into play in this area. The instructions and requirements are quite clear. Also, a person could be inadmissible for life if they willingly and knowingly misrepresent a material fact on the ESTA application or VWP form. If the consular officer denied the visa for fraud, that would likely be a material fact.

Some applicants who indicate a prior visa denial are approved by ESTA and some are not. So it doesn't always result in a denied ESTA. If the ESTA is denied, the person isn't supposed to arrive at the POE.

As a side note, it's possible that there were other employees at that company who were found not to qualify or the company had misrepresented the nature of the work and that all employees of the company under that blanket were flagged for additional scrutiny during the renewal process.

CAProgrammer

I was researching what "without prejudice" actually means in immigration matters. It is exactly what Mr Folinsky said.

The phrase just means that it does not prevent your son from re-applying for the same visa or another type of visa at a later date (or the VWP in the case of what you have found on the internet).

Deportation judgements are "with prejudice" where they don't want to allow you to re-apply for a visa because you must have broken some immigration law to get deported in the first place.

I'm quite interested in this. I think there is a difference between "cancellation" and a "denial". I think you are required to declare a "denial"; not a "cancellation". I'm not backing this up with sound legal knowledge, just a bit of basic logic so someone correct me if I'm wrong.

In your son's case his application for a visa was "denied" and as a result of that denial the old visa in his passport was "cancelled". He needs to declare the "denial" of the visa he just applied for on ESTA and all future visa applications, but not the "cancellation" of the old visa in his passport.

I have come to this conclusion because when my Immigrant Visa was being approved at the US Embassy in London in November, 2011 the Consular Officer said "I will be cancelling your B1/B2 visa as it is not appropriate for you to enter the US with that visa any more" and he stamped "CANCELLED" across the face of it. My B1/B2 visa was issued in 2008 and it was a 10 year multiple entry visa. Here I received a "cancellation", but there was no visa denial because my Immigrant Visa was approved!

JAJ

Unfortunately this is a risk any time someone goes outside the United States to renew a visa. It is unusual for there to be a problem - but not unknown. It needs immediate consultation with a good immigration attorney.

CAProgrammer

Since you now mention that it is L1 and L2 visa, doesn't that mean that your son's company has offices in the UK from which he was transferred? Can't he contact them, let them know what happened and work from the UK office until this visa issue is sorted out?

I don't think it is advisable to pack up their possessions, etc unless they feel there is no hope of an appeal or another application succeeding. If they have loads of cash to burn moving their possessions back and forth across the Atlantic that might be an option but things like clothes, just go and buy a few new ones, a couple of outfits per person should tide them over for a while.

discoviking

This seems to be happening quite a bit lately, I have seen it happen to two of my co-workers recently. One has been stranded for close to 6 months now, the other got it straightened out in about 6 weeks. Granted, this is in India - but both were relatively straight-forward H1-B renewals. I also know people who have cancelled planned vacation/visa-renewal trips for now because of this.

Anecdotal evidence of course, but something seems to be going on at the Consulates.

coopa_troopa

My daughter-in-law decided she would try to return on VWP on the original planned date as there's nothing she can contribute to the situation in the UK and just wanted to get the child back to some kind of normality. She did the ESTA form and has been refused.

She knows there would have been a secondary questioning if she got to POE but now the chance of truthfully answering to that has now gone too.

crg......can you enlighten me on "if ESTA is denied, the person isn't supposed to arrive at the POE" Thank you

coopa_troopa

Yes, this is what he is trying to do now. But with the holidays, some UK people seem to disappear off the face of the earth for a couple of weeks