How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Judith Your Own Question
Judith
Judith, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28197
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
12467490
Type Your Immigration Law Question Here...
Judith is online now
A new question is answered every 9 seconds

Judith we corresponded on the 30th of April, with respect to

Customer Question

FOR JUDITH”
Hi Judith we corresponded on the 30th of April, with respect to the securing of a visa for my wife to accompany our son whilst attending his high school in LA.
Would like to discuss the visa application process further with you, basis of the advice given.
Is the skype phone discussion still an option?
Regards
Submitted: 5 months ago.
Category: Immigration Law
Expert:  Judith replied 5 months ago.

Hello,

I had to take the time to review your prior Q&A which was 2 months ago.

What are the issues you need to discuss?

Judith

Customer: replied 5 months ago.
Hi Judith,
We have subsequently applied for a B1/B2 visa for my wife simultaneously with our son´s F1 visa application. The application has been denied with following response:
"Unfortunately, because you either did not demonstrate strong ties outside the United States today or were not able to demonstrate that your intended activities in the U.S. would be consistent with the visa status, you are ineligible for a nonimmigrant visa."
With the advice that we can reapply by thinking of a different procedure, however the consular officer was not forthcoming with any new suggestions.
Our son´s F1 visa was also denied as he did not have an address of where to stay in LA.
It appears that what actually may have triggered off this denial, was my wife´s question as to getting the first 6 month visa, then wanting to come back home for Christmas and going back in January with the next 6 month visa, together with the fact that we advised in the application that we looking for a visa for the 2 year duration of our son´s high school. The officer advised that the Border official could then deny entry.
The application was supported by evidence of property held back home in the applicant´s name, information on the fact that I, the breadwinner would not be going to the USA, proof of a company in the name of the applicant, a bank statement, etc.
I was quite confident that the application would be successful basis of the 9 FAM 41.31 N14.4.
How would you recommend we proceed now?
P.S. I have not opted for skype due to our current timing diff.. We are 9hrs ahead of PST, and therefore not sure if you are available.
Best Regards
Expert:  Judith replied 5 months ago.

This is quite unusual but you souse may have gotten a newbie. This is the busiest time of the year in the visa offices and They may not have been aware of the FAM section that I cave you in the other link

I have sent you an offer for a skype and can direct you on the procedure to take from here.

9 FAM 402.2-4(B)(5) Cohabitating Partners, Extended Family Members, and Other Household Members not Eligible for Derivative Status

(CT:VISA-1; 11-18-2015)
(Previous Location: 9 FAM 41.31 N14.4; CT:VISA-2195; 10-14-2014)

The B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien's visa classification. This is also an appropriate classification for aliens who are members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period. Such aliens include, but are not limited to the following: cohabitating partners or elderly parents of temporary workers, students, diplomats posted to the United States, and accompanying parent(s) of minor F-1 child-student. B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, provided that the derivative individual intends to maintain a residence outside the United States and otherwise meets the B visa eligibility requirements. If such individuals plan to stay in the United States for more than six months, they should be advised to ask the Department of Homeland Security (DHS) for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principal alien's nonimmigrant status in the United States. You should consider annotating to indicate the purpose and length of stay in such cases.

That is the only visa classification for your spouse to accompany your high school bound child.

What country did she file in?

We should talk on skype so I can run through the process of how to procede.

Judith

Expert:  Judith replied 5 months ago.

I am EST so that makes us 12 hours off it is 7:44 am and evening hours for you now.

We can speak at 9:30 US EST which would probably be 9:30 your time.

Judith

Customer: replied 5 months ago.
We are in Mozambique which is 2 hours ahead of GMT. So it is now 14:50 here in Maputo.
We have filed in Mozambique, at the local US Embassy.
Can we please schedule the Skype call for 11:00 EST(our 18:00), as my husband only gets back from work then. How do we go about setting up the skype call?
Expert:  Judith replied 5 months ago.

I just got out of a meeting.

Can we reschedule for Saturday at 11:00 EST my time.

I generally like to make make my phone consults in the evening because of busy day schedule with appts and clients

To schedule the skype you accept my offer and then a private box appears and I will put in my skype name for you to connect with through their site.

In case you cannot find the previous offer, here is another

It will be in your email box.

You are a charged twice. Once for this Q& A and once for the phone call. No surprises. You will see a charge for this conversation because it also takes my time to go back and read the previous post and assess this situation to which I responded.

The call will be to strategize on the execution of the plan.

Judith

Customer: replied 5 months ago.
Good afternoon Judith,
Have just seen your response above with respect to rescheduling a skype call for EST 11:00 Saturday. Unfortunately this will not be suitable for us.
We are under a time constraint to finalize this issue A.S.A.P. with a number of issues dependent on the successful visa application.
What you have provided so far in response to our earlier information, regarding having had a visa denial, is the same information you provided on the 30th of April, i.e. that under 9 FAM 41.31N14.4, a B2 VISA is appropriate for parents of minor F1 child students.
What plan do you have in mind that may help us resolve this issue?
Expert:  Judith replied 5 months ago.

I would say your wife was a bit too talkative. Always one only answers questions asked and does not offer additional information unless it is to show documentation.

I'm sorry I cannot accommodate your needs.

I have a law practice with clients booked weeks in advance so I have to keep those commitments.

I do not know if you took with you a print out of the FAM as per my reference to request a supervisor to review the FAM section in direct response to the consular officer stating lack of strong ties and no intent to return.

Deed to home residence, copy of bank financials and evidence of husband's employment and he is remaining in home country.

The FAM clearly indicates it is meant for the ability to stay long term with the household family member.

In addition the Customs and Border Patrol Inspector's Field Manual does allow entry for up to one year in circumstances where the B2 alien is accompanying a minor student entering on an F1. The example given is of a dependent parent or domestic partner not entitled to the dependent visa classification and would apply equally to parent of a minor student. So contrary to the consular officer's statement about denied entry, if your wife showed a copy of the child's I-94 entry would not be denied as per their Field Manaul.

Obviously this consular officer was inexperienced and did not know the FAM or CBP inspector's field manual.

See page 50

http://shusterman.com/pdf/cbpinspectorsfieldmanual.pdf

See below

(2) Classification: B-2 Visitor for pleasure. Documents required: Passport valid for a minimum of 6 months beyond the period of admission, unless otherwise provided for or waived. Nonimmigrant visa (B-2) unless waived. Qualifications: Has a residence in a foreign country which the alien does not intend to abandon. Subject to all nonimmigrant grounds of inadmissibility. Intends to enter the U.S. for a temporary visit. Will engage in legitimate activities relating to pleasure. Has made financial arrangements to carry out the purpose of the visit to, and departure from, the United States. Terms of admission: Maximum admission is 1 year. If admissible, a B-2 is generally admitted for 6 months. Notations on I-94: B-2, (date to which admitted). Special notes: (A) Minimum admission period. Unless specifically authorized by a supervisory inspector, the admission period shall be no less than 6 months. (B) Determining eligibility. If otherwise admissible, admit the following as B-2: (1) An alien coming for purposes of tourism or to make social visits to relatives or friends; (2) An alien coming for health purposes; 50 CBP Inspector’s Field Manual (3) An alien coming to participate in conventions, conferences, or convocations of fraternal, social or service organizations; (4) An alien coming primarily for tourism who also incidentally will engage in a short course of study; (5) An amateur coming to engage in an amateur entertainment or athletic activity, even if the incidental expenses associated with the visit are reimbursed; (6) A dependent of an alien member of any branch of the U.S. Armed Forces temporarily assigned to duty in the United States; (7) A dependent of a category “D” visa crewman who is coming to the U.S. solely for the purpose of accompanying the principal alien; (8) An alien spouse or child, including an adopted alien child, of a U.S. citizen or resident alien, if the purpose of the visit is to accompany or follow to join the spouse or parent for a temporary visit; (9) A dependent of a nonimmigrant who is not entitled to derivative status, such as in the case of an elderly parent of an E-1 alien, or a domestic partner (Revised by CBP 3-04); (10) An alien coming to marry a U.S. citizen or lawful permanent resident with the intent to return to a residence abroad soon after the marriage; (11) An alien coming to meet the alien’s fiancé(e)’s family (to become engaged; to make arrangements for a wedding; or to renew a relationship with the prospective spouse); (12) A spouse married by proxy to an alien in the U.S. in a nonimmigrant status who will apply for a change of status after consummation of the marriage; (13) An alien who is entitled to the benefits of section 329 of the Act (Naturalization) and who seeks to take advantage of such benefits irrespective of the foreign residence abroad requirement of section 101(a)(15)(B); (14) A dependent of an alien member of the U.S. Armed Forces who qualifies for naturalization under section 328 of the Act and whose primary intent is to accompany the spouse or parent on the service member’s assignment to the United States; (15) An alien destined to attend courses for recreational purposes; or (16) An alien seeking to enter the U.S. in emergent circumstances, when he or she is otherwise entitled to lawful permanent resident status. For example: a permanent resident alien employed by a U.S. corporation is temporarily assigned abroad but has necessarily remained more than 1 year and may not use Form I-551 in order to travel to the U.S. for an emergency and then return abroad. The alien has never relinquished permanent residence, has continued to pay U.S. income taxes, and perhaps even maintains a home in the United States. The alien may be issued a nonimmigrant visa for this purpose and Form I-551 need not be surrendered

NOW HERE IS THE MOST IMPORTANT GUIDANCE ON THIS ISSUE FROM USCIS

http://www.ilw.com/immigrationdaily/news/2011,0826-b2.pdf

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal nonimmigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal nonimmigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State (DOS) guidance provides for issuance of B-2 visas to these household members. See 9 FAM 41.31 N14.4. DOS guidance directs consular officers to notate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from the Department of Homeland Security (DHS) for the duration of the principal alien’s nonimmigrant status. See 8 CFR 214.2.

In conclusion, your spouse makes another visa appointment and prints off the links to the

1. Foreign Affairs Manual and highlights the pertinent parts

2. Prints off the Customs and Border Protection Field Manual and highlights the pertinent part

3. Prints off the USCIS Guidance Memorandum dated Aug 11. 2011 highlighting the pertinent parts.

Takes with her her return ticket for December.

Takes with her Copy of household deed; Employment letter for husband indicating when he commenced employment with the company, and that he is not taking leave to accompany his minor student son to the US to attend high school and will be remaining on the job.

Your son needs to have an address in LA where he will stay with his sponsor family. It was my understanding that he has such there from the first post here.

It is obvious the consular officer was looking for an any opportunity to deny the visas. With great deference and humility your wife is to request that she have a supervising unit chief look at the application because the grounds given by the consular officer during the first interview were totally contrary to the FAM; CBP Field Manual and USCIS Policy Memorandum. In addition, consideration must be given to the compelling evidence of intent to return such as maintenance of residence in home country; strong financial ties; and spouse/father remaining in home country at position of employment which he has long history of.

If the 2nd visa is refused you will ask the supervising officer to request an Advisory Opinion from the Visa Office in WDC because the decision is contrary to the regulations of the State Dept; Customs and Border Patrol and USCIS published policy on this direct issue.

If they refuse you will yourself have to request an Advisory Opionion.

Send the request by DHL or other fastest courier service

Here is the address for the Advisory Opinion and the format the request has to take:

Jeffrey Gorsky,

Chief Advisory Opinions

DOS Office of Legislation, Regulations and Advisory Assistance

*****NW

WDC###-##-####/p>

VISA OFFICE INQUIRY FORM

POST:

Date of Inquiry:

Nature of Inquiry:

Communication Problems?

Post Procedure Response?

Advisory Opinion?

Security Clearance?

Have you contacted post directly?

Yes? No?

When:

How:

Phone? Mail? Fax? E-Mail?

Name of person you contacted (if known):

Attach correspondence, if any:

Full Name(s)*, Nationality, and Place and Date of Birth of Foreign National:

Current Visa Status in U.S., if any:

Type of Visa:

Immigrant? (Category)

Nonimmigrant? (Category)

IV Case Number:

NIV Appointment Number:

Address:

Phone:

I have put in one hour and 38 minutes in drafting this response per your request. It is well beyond the general information JA answers are meant for. I would sincerely ***** ***** considering a bonus in addition to the value you placed on this question. Keep in mind experts only receive a small percentage of the fee you pay Justanswer the website.

I have no control on visa issuance. I do have the years of expertise and knowledge of how to now approach the new interview and the right to request review by a unit chief or the Consul General. I apologize that I could not accommodate your schedule but I too have a schedule to keep.

Let me know how further I can be of assistance.

Judith

Expert:  Judith replied 5 months ago.

I am not sure you understand how the site works but experts do not earn a cent if the customer does not provide a positive rating. And then we only get a small share of what you pay the website.

I understand you could not work with my schedule for a skype call so I went the extra mile to give you HUGE amounts of information in writing and supporting links from 3 different US government agencies on the issue the consular officer was wrong about.

I gave you the plan in writing on how to proceed with the visa applications for both your wife and son.

The average legal fee for the information and procedural direction I gave you would be US$1500 or more.

I am baffled what you found unsatisfactory about my assistance that you would not want to give a positive rating so I could be compensated a small fraction that a US attorney would charge you for this had you consulted with them by email or telephone call.

I am sure you consider your time and knowledge in your profession to have value. May I ask please for clarification on what was lacking in my answer so I can remedy it?

Judith