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Visa application (DS-156) question

Visa application (DS-156) question

Old Jul 17th 2002, 3:37 pm
  #1  
mak
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Default Visa application (DS-156) question

Hello experts,

Could you help answer my dilemma please (excuse the long post giving all the details).

I am a naturalized UK citizen and planning to apply for H-1 visa soon at the embassy. I was an Indian national before and gave it up when I took UK nationality. I was refused F-1 visa under 214(b) more than 12 years ago in India when I was an Indian national holding Indian passport (Now I don't hold Indian passport). I had never applied for a US visa on my UK passport but traveled to the US on couple of occasions under Visa Waiver (VWP) recently. On these occasions, I didn't disclose about the visa denials in India on the I-94W form where a question asks about any previous visa refusals. I honestly thought that since I don't have any refusals with my UK passport, I don't have to declare about the refusal in India. At the POE, I was admitted without any problem every time I traveled.

The company lawyer now advises that I may have to disclose about the visa refusal in India on the DS-156 visa application. If I disclose this, would it affect my application since I didn't disclose this on the I-94W on previous visits to the US?

If I don't disclose it on the DS-156 to be consistent with the I-94W, what are the chances that the consul may find out about the refusal in India and if so, will it result in denial of visa? Will the embassy know how I had answered on the I-94W during my previous entries to the US?


Thanks for your expert comments and appreciate you quick replies.
mak is offline  
Old Jul 18th 2002, 3:20 pm
  #2  
Webcrawler
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Default Re: Visa application (DS-156) question

Greetings,

I would suggest you seek a second legal opinion before doing either of these. I would
also suggest that you go as per a lawyer's advice, and not any anonymous advice on
the Internet.

I know that a consulate does not store DS-156 (earlier OF-156) beyond 2 years. All
I-94 information is entered in a central database located somewhere in Kentucky. This
process is buggy at best.

On the face of it, it seems that you may be ok if you don't mention that visa denial
that occured 12 years back. However, with the INS suddently pulling themselves back
up with their shoe-laces, you never know.

That is why you need a lawyer to back you in whatever you are doing.

Regards.

mak <[email protected]> wrote in message
news:<[email protected]>...
    > Hello experts,
    >
    > Could you help answer my dilemma please (excuse the long post giving all the
    > details).
    >
    > I am a naturalized UK citizen and planning to apply for H-1 visa soon at the
    > embassy. I was an Indian national before and gave it up when I took UK nationality.
    > I was refused F-1 visa under 214(b) more than 12 years ago in India when I was an
    > Indian national holding Indian passport (Now I don't hold Indian passport). I had
    > never applied for a US visa on my UK passport but traveled to the US on couple of
    > occasions under Visa Waiver (VWP) recently. On these occasions, I didn't disclose
    > about the visa denials in India on the I-94W form where a question asks about any
    > previous visa refusals. I honestly thought that since I don't have any refusals
    > with my UK passport, I don't have to declare about the refusal in India. At the
    > POE, I was admitted without any problem every time I traveled.
    >
    > The company lawyer now advises that I may have to disclose about the visa refusal
    > in India on the DS-156 visa application. If I disclose this, would it affect my
    > application since I didn't disclose this on the I-94W on previous visits to the US?
    >
    > If I don't disclose it on the DS-156 to be consistent with the I-94W, what are the
    > chances that the consul may find out about the refusal in India and if so, will it
    > result in denial of visa? Will the embassy know how I had answered on the I-94W
    > during my previous entries to the US?
    >
    >
    > Thanks for your expert comments and appreciate you quick replies.
    >
    >
    >
    > --
 
Old Jul 19th 2002, 9:24 am
  #3  
mak
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Default Re: Visa application (DS-156) question

Thanks 'webcrawler' for your comments.

Just to clarify, my last entry into US was in January 2002, and I had no problem at the POE. On the I-94W I had not disclosed about the visa refusal 12 years ago and obviously this info. was not available to the INS inspector at the POE.

You are saying that my DS-156 (OF-156) data record will not be available now at the embassy as well. Will it be in their visa lookout database?

My dilemma is:
Since I didn't disclose the refusal on the I-94W, if I disclose the refusal on the DS-156 now, will it create any problem? Does the embassy have access to my I-94W data?

If I don't disclose the refusal on the DS-156 now to be consistent with my earlier declaration on the I-94W, will it create any problem (this is possible only if my old refusal record is available in their database)? If I don't disclose and the consul finds out about this, what's the penalty? (misrepresentation!, permanent visa bar!?)

Either way I seem to have a problem. Which is the best way to go? Note that if my application gets denied, I also lose my VWP travel privilage!!

My company lawyer says always be truthful on the application. I understand this, but given the above situation, I am not sure how to go about it?

Thanks for any comments!
mak is offline  
Old Jul 20th 2002, 11:20 pm
  #4  
Ingo Pakleppa
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Default Re: Visa application (DS-156) question

On Fri, 19 Jul 2002 07:20:37 -0700, mak wrote:

    > Thanks 'webcrawler' for your comments.
    >
    > Just to clarify, my last entry into US was in January 2002, and I had no problem at
    > the POE. On the I-94W I had not disclosed about the visa refusal 12 years ago and
    > obviously this info. was not available to the INS inspector at the POE.
    >
    > You are saying that my DS-156 (OF-156) data record will not be available now at the
    > embassy as well. Will it be in their visa lookout database?
    >
    > My dilemma is: Since I didn't disclose the refusal on the I-94W, if I disclose the
    > refusal on the DS-156 now, will it create any problem? Does the embassy have access
    > to my I-94W data?
    >
    > If I don't disclose the refusal on the DS-156 now to be consistent with my earlier
    > declaration on the I-94W, will it create any problem (this is possible only if my
    > old refusal record is available in their database)? If I don't disclose and the
    > consul finds out about this, what's the penalty? (misrepresentation!, permanent
    > visa bar!?)
    >
    > Either way I seem to have a problem. Which is the best way to go? Note that if my
    > application gets denied, I also lose my VWP travel privilage!!
    >
    > My company lawyer says always be truthful on the application. I understand this,
    > but given the above situation, I am not sure how to go about it?

My take on this is: be honest now. At worst, you would be denied the H-1B. Even that
doesn't seem very likely to me because you probably can claim ignorance (this may or
may not work). If the H-1B is indeed denied, you would be no worse off than you are
now, and better than the alternative: lying and having the H-1B (or even a Green
Card, even US citizenship if you are ever naturalized) revoked.

Ingo
 
Old Jul 21st 2002, 5:20 pm
  #5  
Webcrawler
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Default Re: Visa application (DS-156) question

Greetings,

    > Just to clarify, my last entry into US was in January 2002, and I had no problem at
    > the POE. On the I-94W I had not disclosed about the visa refusal 12 years ago and
    > obviously this info. was not available to the INS inspector at the POE.

If your original rejection was 12 years ago, and on a different passport, it is
highly unlikely that that data will be readily available either to the consulate or
to the PoE officer. That said, it is still a "technical" possibility. Consulates do
not retain applications beyond 2 years. But that information is not discarded; it
goes somewhere. I don't know where, and how reliable that system is.

They might begin to streamline the system because of increasing security concerns.

    > You are saying that my DS-156 (OF-156) data record will not be available now at the
    > embassy as well. Will it be in their visa lookout database?

The US Consulates/DoS web sites are saying that they now run security checks for all
non-immigrant visa applicants as well through their "Washington database". I am not
sure exactly what database it is and what kind of data it archives. But they have
recently added this additional step to the NIV visa processing.

    > My dilemma is: Since I didn't disclose the refusal on the I-94W, if I disclose the
    > refusal on the DS-156 now, will it create any problem? Does the embassy have access
    > to my I-94W data?

They didn't use to have earlier. But now, it is likely. When they say that they run
all names thru the "Washington database", it could turn up there.

    > If I don't disclose the refusal on the DS-156 now to be consistent with my earlier
    > declaration on the I-94W, will it create any problem (this is possible only if my
    > old refusal record is available in their database)? If I don't disclose and the
    > consul finds out about this, what's the penalty? (misrepresentation!, permanent
    > visa bar!?) Either way I seem to have a problem. Which is the best way to go? Note
    > that if my application gets denied, I also lose my VWP travel privilage!!
    >
    > My company lawyer says always be truthful on the application. I understand this,
    > but given the above situation, I am not sure how to go about it?

I think you should consult another lawyer. How important is that H-1B for your career
at this time? You can declare it, and if the consulate does not know that you had not
declared it earlier, you will easily get the H-1B. However, if they do, then it could
get complicated, and you will have to appeal/re-apply. That is why you need the
backing of a lawyer.

If you don't declare your previous rejection, and they find out (however unlikely
that is), you will again need to consult a lawyer.

Comparatively, the first option seems safer. But you should seek second legal
opinion.

Regards.
 
Old Jul 23rd 2002, 3:23 pm
  #6  
mak
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Joined: Jul 2002
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Default Re: Visa application (DS-156) question

Thanks Ingo and webcrawler for your comments.

My lawyer has also suggested to diclose the prior visa refusal on the DS-156 form. He doesn't foresee any problem as it had happened long time ago. He suggested that in the worst case, the consul may interpret it as misrepresention but says we can argue about the 'materiality' of that fact. Hope if it comes to this, it will work in my favor.

So overall feeling is that the visa will be issued without any problem. So I am going to apply as suggested by the end of the week.

Meanwhile if you have any more comments, please post.

Thanks!
mak is offline  
Old Jul 24th 2002, 5:26 pm
  #7  
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Default Re: Visa application (DS-156) question

I would say, from personal experience - Be Honest.

I have been unlucky to be taken aside on entering the US on a waiver . I put down that I had been turned down for an F1. I spent a nervous time in a clean white room until an officer turned up with a print out of *all* the times I entered the US - even though I was on my third passport. But, they let me in as my story was straight and I was honest with them - after all, they had the answers in front of them....

I entered again some months later with the same admittal of an F1 refusal on the waiver and the officer missed it. I pointed it out to him, which he was grateful for, initialed it and let me in.

So, I eventually got my F1 and now my H1.
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