Thank you, US Embassy and INS, for lifting Regine’s lifetime ban - IMMIGRATION CORNER by Michael J. Gurfinkel

On May 17, 2001, the U.S. Embassy issued a B-1 visitor’s visa to my client, Regine Velasquez, clearing the way for Regine to once again enter the U.S. Although, by law, Regine was subject to a possible lifetime ban for attempted alien smuggling, the U.S. Embassy, in conjunction with the Immigration and Naturalization Service, graciously granted a special waiver to Regine under Section 212(d)(3) of the Immigration and Nationality Act.

There has been a lot of speculation, rumors, and hearsay surrounding Regine’s visa problems. But what really happened? With Regine’s consent, I would like to set forth Regine’s position on this unfortunate matter.

Regine was scheduled to perform a series of concerts throughout the United States during the summer of 2000. The concert producers told Regine’s manager that they were including, as part of Regine’s entourage, a "wardrobe assistant", who was to come along with Regine for the concert and handle Regine’s wardrobe for the concert. Regine thought nothing of this, as it is normal in the industry that while entertainers select the band and back up singers, it is the producers who select the "backstage" staff, such as stagehands, wardrobe assistants, etc. Besides, Regine was more focused on promoting the concert, ticket sales, rehearsals, etc. and was not really concerned as to who would be her wardrobe assistant. It was not a major item to Regine.

As it turned out, the wardrobe assistant admitted to the Embassy that once she arrived in America, she intended to remain in the U.S. and would "be proceeding to . . . California to work as Personal Secretary" for one of the producers.

When Regine went to the U.S. Embassy on July 6, 2000, to apply for her entertainer’s visa for the concert tour, the Consul questioned Regine as to how long the wardrobe assistant had worked with her. Although Regine had only met that person for the first time on the same day that she applied for the visa, at a loss for words, Regine told the Consul "three years".

Because this person had not previously worked with Regine as a wardrobe assistant (and Regine had stated she did), Regine was thereupon refused her visa under Section 212(a)(6)(E) of the Immigration and Nationality Act, for knowingly assisting, aiding and abetting "any other alien to enter or to try to enter the United States in violation of law". In other words, by misrepresenting the length of her relationship to the wardrobe assistant, Regine engaged in "alien smuggling". Regine did not benefit materially by adding this person on to her entourage. (There were rumors and gossip that Regine had done this sort of thing before (adding entourage for producers) in previous concerts, andor was paid extra by the producers to include the wardrobe assistant as a "favor" to them. Regine was not paid anything "extra" by the producers to include the wardrobe assistant, aside from her normal fees for the concert, and she had not done this sort of thing before.) Still, that one single act of misrepresenting the length of her working relationship with the wardrobe assistant was enough to constitute alien smuggling, which ordinarily carries a lifetime ban.

Many people had suggested that Regine fight the ban or file a lawsuit. However, there is no appeal from a Consul’s finding of ineligibility. In addition U.S. courts have repeatedly declared that courts ordinarily have no jurisdiction over decisions by Consuls with respect to the refusal or denials of visas. In other words, Consuls’ decisions are final and are beyond the reach of U.S. courts.

After her visa was denied, Regine initially went to an immigration consultant for assistance, who said he had "connections", which was not true. Even some well-connected politicians wanted to help Regine. But there are no such things as "connections". Either you qualify for the immigration benefit, or you don’t. After Regine got nowhere with the consultant and politician’s help, Regine came to me. (My office did not prepare or handle the initial entertainer visa petition, which had included the wardrobe assistant as part of Regine’s entourage. That was done by a different law office)

Regine, following my advice, has not discussed her case with the press or media, while her waiver request was being considered by the Embassy. This is because it is up to the INS and Embassy, not public opinion, whether a person is entitled to a particular immigration benefit. To its credit, the press has respected Regine’s wishes (of not wanting to "try her case" in the press, and/or appealing her case to the court of public opinion).

In dealing with the U.S. Embassy and INS over this matter, the Consuls and Immigration Officers (and their Staff) were extremely courteous and professional. By law, the Embassy could have banned Regine from entering the U.S. for the rest of her life. But the Embassy and INS graciously agreed to a special non-immigrant waiver under Section 212(d)(3) of the Immigration and Nationality Act, enabling a person to enter the U.S. on a non-immigrant visa, such as visitor’s or entertainers visa. (This special waiver is not available for people applying for immigrant visas or green cards). This waiver requires the cooperation and approval of both the Embassy and the INS.

Regine and I are grateful to the Embassy and to the INS for granting this waiver. Many articles were written after Regine’s visa was denied, proclaiming that Regine’s career in the U.S. was "dead", and she would never be able to perform again in America. This waiver could now clear the way for Regine to someday soon perform live in the U.S. The Embassy and INS have given Regine back her career in the U.S.

Although by law Regine still has the alien smuggling charge on her record, she is at least able to come to America. Regine also would like her misfortune to serve as a lesson or example to other people about the dangers and devastating consequences of alien smuggling. Regine has not attempted to deny responsibility or shift blame for her actions. She fully admits that what happened was wrong.

It does not take much to commit alien smuggling. (In Regine’s case, she misrepresented how long the "wardrobe assistant" had worked with her) Alien smuggling could also include grandparents claiming a grandchild as their natural child for petitioning purposes; an aunt or uncle claiming their niece or nephew as their natural child in order to be able to petition that child; a couple filing a birth certificate for a "given child" who is neither a legally adopted or biological child, so that they could later try to petition that child. Alien smuggling could also include an unmarried sibling vouching that their married brother or sister is also single, to help facilitate the married brother or sister get a visa as "single". In that case, even if the truly single sibling is entitled to a visa, the fact that they vouched for the married brother or sister (as also being single) constitutes assisting, aiding and abetting "any other alien to enter or to try to enter the United States in violation of law".

The bottom line is that if somebody is not eligible to come to America, and you participate in his attempt to enter the U.S., you could be charged with alien smuggling.

Michael J. Gurfinkel has been a licensed attorney in California for 21 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also an active member of the State Bar of California, the American Immigration Lawyers Association, and the Immigration Section of the Los Angeles County Bar Association. All immigration services are provided by an active member of the State Bar of California and/or by a person under the supervision of an active member of the State Bar.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239. For more information about the Law Offices of Michael J. Gurfinkel, and to read previously published articles, please visit our website at www.gurfinkel.com

(This is for informational purposes only, and reflects the firm’s opinions and views on general issues. Each case is different and results may depend on the facts of a particular case. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)