HAYMAN-WOODWARD
867 subscribers
213 photos
170 videos
19 files
318 links
HAYMAN-WOODWARD Chat Board
Download Telegram
Navigating Visa Denials: Empowering Applicants Against Consular Overreach

Introduction:
The labyrinth of immigration law often presents daunting challenges, notably when applicants confront visa denials that hint at consular overreach. Some recent cases involving EB-2 National Interest Waiver (NIW) applicants in consular interviews before the U.S. Consulate in Rio de Janeiro, crystallizes the necessity for vigilance and empowered action in the face of such adversity. This post seeks to shed light on the recourse available to individuals in comparable predicaments, aiming to demystify the process and arm them with knowledge. 🌟 #ImmigrationLaw #VisaDenial

Understanding Your Case:
An EB-2 NIW petition whose I-140 eligibility has been approved by USCIS is unjustly denied during the consular immigrant visa interview, and such decisions are marred by a conflation of licensing requirements, an improper reassessment of the beneficiary's credentials, an unwarranted English proficiency demand, and a misapplication of criteria pertinent to healthcare professionals. Each misstep signifies a deviation from established legal precedents and State Department guidelines. #LegalPrecedents #MatterOfDhanasar

Combatting Misapplication of Licensing Requirements:
Under the INA, professional licensing is not a prerequisite for NIW applicants, which was overlooked in this case. To counter such misapplications, applicants are encouraged to:

1. Present Precedents: The Matter of Dhanasar (AAO Dec. 27, 2016), which underscores that an NIW does not hinge on professional licensing.
2. Highlight Qualifications: Underscore the applicant's potential contributions and how they align with the U.S. national interest.
3. Request Reconsideration: We recommend to address a very persuasive letter to the Visa Chief, referencing applicable sections of the INA and AAO decisions, to elucidate the errors made. 📝 #VisaGuidance #ImmigrationTips

Addressing Erroneous Reassessment of Petitions:
The FAM (Foreign affairs manual) stipulates that a petition's approval by USCIS / DHS is prima facie evidence of eligibility, restricting consular officers from reassessing its merits (9 FAM 502.1-1(C)). Applicants should:

1. Refer to FAM: Invoke the relevant FAM provisions that delineate the consular officer's role in authenticating the veracity of information presented.
2. Affirm the Petition's Credibility: Present additional evidence validating the integrity of the petition.
3. Assert Due Process Rights: Invoke due process protections, as outlined in the FAM, to uphold the applicant's rights. 🛡 #DueProcess #VisaApproval

Challenging the English Proficiency Requirement:
The imposition of an English proficiency requirement where none exists legally is contestable by:

1. Demonstrating Policy: Emphasize that the U.S. does not designate an official language and the INA omits language prerequisites for NIW applicants.
2. Legal Recourse: Explore challenging such impositions under the Administrative Procedure Act as capricious or arbitrary decision-making. 🗣 #LanguageBarrier #ImmigrationLaws

Correcting Misapplication Specific to Healthcare Professionals:
Applicants need to distinguish the criteria for entrepreneurs from those applicable to healthcare professionals, ensuring that each is evaluated under the correct legal framework:

1.Clarify Visa Categories: Elucidate the discrete standards for entrepreneurs, which are free from healthcare licensing or VisaScreen certificate requirements.
2. Document Submission: Provide comprehensive documentation that substantiates the entrepreneurial nature of the undertaking, distinct from healthcare service delivery. 👨‍💼 #EntrepreneurNIW #HealthcareProfessionals