Transcript of the above video:

As the title of this video suggests, we are discussing, this is kind of an alert. I am not making this to be sort of overly hyperbolic but when changes kind of are on the horizon like this especially in a US Immigration context, I like to kind of get out ahead of it. I thought of making this video after watching another video actually. It is by Jim Hacking over at his channel which concentrates pretty heavily on US Immigration; in fact I think the exclusive bailiwick is US Immigration. We are a little bit more generalist over here and then obviously we are kind of a unique channel insofar as we pretty well talk about Thailand although as folks who have watched this channel with any regularity will know, we do talk about US Immigration. I have done US Immigration from here in Thailand primarily for going on a decade and a half now at this point. l will go ahead and put a link to the video in the description so folks can go over there directly and see Mr. Hacking's analysis. Quite good frankly. The minute I saw it, I was like, "I have got to make a video on this." He brought up a good point. Now I believe that case he was talking about it was originating out of Nigeria. For those who think that "Oh well, one part of the world is different!" yeah it might be for the moment, as he gets into and talks about in his own video but it won't stay mutually exclusive forever, that's been my experience. So what exactly are we talking about here? As he brings up in his video, and frankly I would urge those who are watching this when they really want to get in to this, go check out his video as well because his analysis is more in-depth and he was actually dealing with one of his own cases where he saw this pop up but the minute I saw it, I have seen how this has played out over 15 years and this could be pretty game-changing if this is a trend that is coming to the forefront. So what is going on?  

Well just to paraphrase him, basically he had a case. It was a case involving a couple, they had tried to obtain a Visitor Visa I think before they even got married and then the Visitor Visa was denied. As we have discussed in many, many videos on this channel, section 214(b) of the Immigration and Nationality Act results in a number of denials of US Tourist Visas especially in cases where there is any kind of thought in the Consular Officer's mind that there may be a romantic relationship with an American because basically they are worried that person is going to use a Tourist Visa to circumvent the Immigration process, go to America, essentially marry their spouse and then file for Permanent Residence from the United States which Consular Officers don't want to see that happen and that's why they kind of guard against this. Section 214 (b) and the Doctrine of Consular Non-reviewability which we have discussed in other videos, all of those kind of play into how they how they actually adjudicate those findings. But long story short, as we have discussed in other videos, the Visitor Visa was denied and then I think if I remember correctly, the couple then got married or maybe they were already married I can't remember what it was but in any event they turned around, filed an I-130, they filed for Immigrant Spousal Visa benefits thereafter. Now this is where the rubber meets the road and this is where when I saw his video I was like "Wow, if that is coming online that could have a tremendous impact," and I suspect if it is going to have an impact, and it could have an impact out here in Southeast Asia. It might not be today or tomorrow but it could. One of the big reasons I want to be clear on this is why I think it could, but let me get into that in a minute. Long story short, this is where the rubber met the road. They had filed for a Visitor Visa and then they turned around and went ahead and filed for an I-130. As we have discussed in other videos involving Fiancé Visas as well as Marriage Visas, generally speaking that initial Visitor Visa as long as you tell the truth in the application, the denial is not going to be that big of a deal, like I hate to use a colloquialism there but I have never seen a prior denial in the past, it can weigh on things, I generally want to see a copy of the filing associated with a prior Visitor Visa but in my experience, it was denied, no harm no foul, you just sort of lose your application fee. But as he brought up in his video, a situation arose in the I-130 process where a Request for Evidence was issued and in the RFE, it became clear that Department of State was talking to USCIS about this prior denial of this Tourist Visa, of this Visitor Visa. Now if that is happening, that is substantial, that is a big deal because this could change the way in my opinion, cases should be analyzed from the get-go. 

So for example here in Thailand, in the past people contacted me before or after filing for a Visitor Visa and generally speaking filing for a Visitor Visa, the denial does not have any lasting ramifications. Let me be clear, the denial itself doesn't necessarily have any lasting ramifications, it is the application occurring at all which may have ramifications on a subsequent, in this case an I-130, that is what he was talking about here. I can't stress this enough. This has not been the case up to now, okay? I have never heard of Department of State talking to USCIS about a filed case, a previously denied Tourist Visa in the context of the adjudication of a filed I-130, I have not heard of that, unless we are talking about an issue of fraud and misrepresentation, but I have only ever even heard of that in context of an issued Tourist Visa, not anything associated with a denied Tourist Visa. I am not going to get too into the analysis on the difference in that but long story short when I heard this from him, that he was seeing this issue, my ears perked up. Next thing to think of, as he said, now there may be those who say "well the case involved - it came up in Nigeria", I'm not sure if Nigeria is considered what's called a high fraud post but let's presume for the purposes of this video it is, and there may be those who say "well that may be a new high fraud post protocol that they are just doing now", or something. Well, as we discussed, if we go back into this channel's history when we were discussing the so-called “Muslim ban” under the Trump Administration, there were many who took the position that "oh that's not a big deal, I mean that's only going to affect the countries that the ban specifically speaks to, nothing to really see here, nothing to really worry about here, why get all worried about it?" My response to that at the time was NO! Actually it was an overarching policy change and as we discussed in detail at the time, it had different ramifications in different places. As he noted in his video, oftentimes when the folks inside of these agencies and bureaucracies find something find a tactic or a protocol where they create one and they like it they tend to keep using it. That was kind of the thinking at the time of the analysis of the extra sort of adjudicatory scrutiny that went into the "Muslim ban" guidelines. We saw ramifications of that at a local level here in Southeast Asia. It didn't have anything to do with Muslims or anything to do with like a terrorism context or whatever they were talking about in different places, but they created a new framework where they said "are there essentially hot button issues in your region which we should be concerned about in a given case?" and it resulted in kind of a broad application of the underlying scrutiny that was applied per the administrative rules that were created in that "Muslim ban" framework. The minute I heard about this with respect to prior Visitor Visas, especially denied Visitor Visas, again my ears perked up and it caused me to immediately start saying "well does that mean there is going to be ramifications in the context of US Marriage Visas for example the CR-1 or IR-1, the K-3, even the K-1 Fiancé Visa if there is a situation where they have applied for and been denied a Tourist Visa in the past, is that going to make those cases harder to process, longer to process?"

The question is out there. I don't exactly know the answer to that but it is something that those who are looking to bring a loved one to the United States should seriously be considering because I understand, like a lot of people especially folks that we deal with, they usually come to us after being denied on a Tourist Visa application and usually they are not real happy about it because they didn't really understand that. It is pretty hard to get one of those visas especially here in Thailand, especially under section 214(b). But for the most part in my experience it hasn't really had any impact really much at all on a subsequent K-1 Visa case or a subsequent US Marriage Visa case. It needs to be disclosed sometimes, depending on circumstances in the case, but that's basically it. You just basically say yeah we applied for that before, we were denied on it, now we are seeking this and there wasn't a big issue with that. If that is changing, this could be major for those who are looking to bring a loved one back to the United States because if you haven't applied for a Tourist Visa, you may need to contact somebody to do the analysis on whether it is even a good idea to do that or to just immediately go for, for example a Marriage Visa, Fiancé Visa without even trying for a Tourist Visa. I am not saying that is necessarily the case. It is going to be fact driven. It's going to be driven by the underlying circumstances of your case but it is something to consider and the moment somebody like him, in my opinion somebody I really respect especially a guy on YouTube, he gets a lot of good information on US Immigration out there, the moment he mentioned that I said to myself "Wow, that is something that could have tremendous long-term ramifications if that gets more broadly applied to a lot of different cases around the world in the future."