Consular Processing For Visas and Waivers

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When people have lawfully entered the United States, they can apply for their visas with U.S. Citizenship and Immigration Services (USCIS), which is part of the U.S. Department of Homeland Security.  This means that they can also have their visa interviews at an office inside the United States.

But if you have been deported, you have to apply for a new visa, and normally a waiver, while you remain outside of the United States.  The visa interview will always be administered by personnel who work for the U.S. Department of State, at the appropriate U.S. consulate (also part of the Department of State) designated for processing visa applications.  In Mexico, for example, if you are applying for an immigrant visa (a green card for residency), the interview will happen at the U.S. Consulate in Ciudad Juarez.  Ciudad Juarez is the only U.S. consulate that has been authorized to conduct green card interviews in Mexico.

Immigrant Visas

If you are eligible to apply for a green card, but you have been deported, you will also need to apply for one or more waivers of inadmissibility.  For example, someone who 1) had previously lived in the U.S. without status for more than one year, 2) received a formal order of deportation, and 3) who also has a single possession of (30 grams or less) of marijuana, would require three waivers of inadmissibility: a deportation waiver, an unlawful presence waiver, and a criminal waiver.

The process is actually more complicated than it sounds.  Although the interview and the visa application for a green card is ultimately handled by the U.S. Department of State by the designated consulate, an I-130 Petition for Alien Relative must first be filed with the Department of Homeland Security through USCIS.  After the petition is approved, it will be sent to the Department of State, National Visa Center, which will then notify the consulate that you are seeking to consular process.  After you have paid additional application fees and submitted additional forms, the consulate will schedule an interview.

The purpose of the  interview is to essentially confirm that you are legitimately married to, or the parent of, a U.S. citizen (or that you qualify under another family-based classification as an "immediate relative").  But the interview will almost certainly conclude with the consular official notifying you that you are inadmissible to the U.S., and that you must apply for one or more waivers.  Our clients normally have the waiver applications and packets prepared and ready to submit at this point, which is ideal, since it can take up to another year receive a decision on the waiver application.  Normally, another interview is not required--you are just notified of the decision.  However, a second interview is sometimes scheduled by the consulate to determine that you are still eligible for the visa.

Non-Immigrant Visas

If you are ineligible for a green card, then your only option will be to apply for a non-immigrant visa.  There are many kinds of non-immigrant visas, but the most common type is a visitor's,or tourist's, visa.  All non-immigrant visa applications must be made through the appropriate U.S. consulate.  Often times, there are several consulates within a country that process non-immigrant visa applications.  For example, in Mexico, applicants may apply for a non-immigrant visa at any U.S. consulate, or at the U.S. Embassy in Mexico City.  U.S. consulates in Mexico are located in Nogales, Hermosillo, Ciudad Juarez, Matamoros, Merida, Nuevo Laredo, Tijuana, Mexico D.F. (embassy), Monterrey, and Guadalajara.

The most important consideration that a consular official will make in your case is whether you have preconceived "immigrant intent" when applying for your visa.  Immigrant intent means that someone intends to remain in the United States after entering on a visa.  So, if you lived in the United States for most of your life before being deported, and have only been back in your home country for a short period of time, normally the consular officials will conclude that you have immigrant intent.  But if a significant amount of time has passed since your last deportation, and you have established strong ties to your country of origin, then your chances for receiving a non-immigrant visa are better.  Some of the factors that the consular officials will determine when deciding whether you qualify for a non-immigrant visa are:

  • Duration of time outside of the U.S. The length of time you have been outside of the U.S. since your deportation.  Your chances of receiving the visa will be stronger with a longer duration of stay in your home country.
  • Immigration violations. The number of times that you were deported, and more importantly, the number of times you attempted to return to the U.S. since your last deportation, will be important.  With less activity on your immigration record in recent years, your application will be stronger.
  • Employment and finances. You should be able to demonstrate that you have steady employment in your home country, and that you also have sufficient funds to pay for your expenses in the United States during your stay.  A letter from your employer, for example, that states that you are only allowed to take so much vacation (equal to the duration of your stay in the United States) is likely to be helpful, since it demonstrates that you have an incentive to leave the U.S. after your visit.
  • Property ownership. The ability to show that you own property in your home country is also likely to be helpful.  When someone owns property in another country, it appears that he or she has a vested interest in returning to manage that property.
  • Family ties. Demonstrating ties to family and the community in the applicant's home country--not the United States--is very important.  Again, the consular officials need to be convinced that the non-immigrant visa applicant has incentives and reasons to go back home after a visit of limited duration in the United States.

All non-immigrant visa applications must be submitted electronically with a From DS-160.  But the visa application is only one of two written requests that must be submitted.  The other written request is the waiver application (or applications).  Properly preparing the DS-160 and the supporting documentation to show non-immigrant intent is very important.  Preparing the waiver application is just as critical.

Depending on the type of waiver you need to apply for, there will be different kinds of evidence, accompanied by specific government forms, and corresponding application fees.  The procedure for filing a waiver application also differs with the particular kind of waiver you are applying for, and in connection with the particular kind of visa application you have prepared.

If you are ready to explore the process of returning to the U.S. after deportation, contact us today to schedule a consultation.  We can help find the right immigration road to follow back home to the United States.

Arizona's "Crimmigration" Law Firm

If you are not a U.S. citizen, and you are charged with a crime, you automatically have two legal systems that threaten to penalize you with incarceration and deportation. Our law firm concentrates its practice on only criminal defense and immigration law. Our lawyers work in both the criminal and immigration systems, which ensures that our clients only need one law firm to protect them in criminal and immigration courts.

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The Law Offices of Matthew H. Green is focused on the aggressive defense of immigrants.

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