I previously was in F-1 status but I overstayed and worked illegally for several years; the INS never found out about it.  I then obtained an H-1B approval with the help of my current employer.  However, because I was out of status I could not change status to H-1B.  I now have to go to a consulate abroad to obtain an H-1 visa, but I am afraid that the consulate will turn me down.  Do I have a chance?

As you probably know, consular officers do not like it when aliens overstay and/or engage in unauthorized employment.  However, in your situation you are still eligible for an H-1B visa.  You mentioned that the INS never found out about the previous violations, presumably because your employer indicated on your H-1B petition that it was for new employment, making the issue of your current status irrelevant.  Assuming that no misrepresentations were present in your H-1B petition, you are still eligible for an H-1B visa. 

Consulates can only refuse you on legal grounds.  In other words, they must normally find you inadmissible under either INA §212(a) or INA §214(b).  Although INA §221(g) is a commonly cited ground for refusing a visa, it is not an independent basis for refusing a visa application.  It simply states that no visa or other documentation shall be issued to an alien if:

1. It appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law;

2. The application fails to comply with the provisions of this Act, or the regulations issued thereunder; or

3. The consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law

Unless the applicant appears to be ineligible for a visa on the basis of some other provision of the law, INA §221(g) by itself cannot be used to support a refusal. 

As stated above, one of the grounds of inadmissibility that might apply to you is misrepresentation under INA §212(a)(6)(C)(i).  However, for the purposes of this question I have assumed that you made no misrepresentations regarding your previous violations of status.  If this is the case, you are not inadmissible under this ground. 

One of the other grounds of inadmissibility that might apply is bar for unlawful presence contained in INA §212(a)(9)(B).  Although the INS originally indicated that unlawful presence would begin to accrue after a status violation (in contrast to an overstay), they have since retreated from this position.  The INS and Department of State now take the position that unlawful presence for the purposes of the three- and ten-year bars will only occur:

1. When the alien overstays the date on his or her Form I-94;

2. When an immigration judge makes a determination of a status violation in exclusion, deportation or removal proceedings, or

3. When the INS makes such a determination during the course of adjudicating a benefit application.

Another potential ground for refusing your visa application (if you apply at a third country post) is the consular shopping bar that appears at INA §222(g).  If an alien enters with a visa and overstays, their existing visa is void upon departure and they are barred from applying for a new visa at any consular post except one in their home country.  However, as in the case of unlawful presence, the Department of State takes the position that aliens who original entered the United States for duration of status are not caught by INA §222(g) unless:

1. An immigration judge finds the alien has violated status and is excludable/deportable/removable; or

2. The INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

1. An immigration judge finds the alien has violated status and is excludable/deportable/removable; or

2. The INS, in the course of adjudicating an application for a benefit (e.g., extension of stay or change or adjustment of status), determines that a status violation has occurred.

As you were admitted for duration of status and your violation of status was not discovered by the INS (either during proceedings or during the adjudication of your H-1B petition), neither INA §212(a)(9)(B) nor INA §222(g) applies to you in the present case. 

Normally, overstaying your previous status and engaging in unlawful employment would still be evidence of immigrant intent under INA §214.(b), which can be he basis for a visa refusal.  However, if you are applying for an H-1B visa, INA §214(b) has no application and you cannot be denied because of immigrant intent.  This is because H-1 aliens are specifically exempt from INA §214(b). 

In light of the fact that there is no legal basis for denying your visa application, you should be entitled to an H-1B visa.  However, not all consular officers are aware of the law.  Notwithstanding the law, they may be inclined to refuse your visa because they believe that violations must be punished.  These refusals are not supported by the law and may sometimes be resolved by speaking with the Nonimmigrant Visa Section Chief and or the Chief of the Consular Section.  If none of these individuals grants the visa, a request for an advisory opinion is appropriate.  Advisory opinions on matters of law are binding on consular officers. 

I am a Canadian citizen who is inadmissible because of a criminal conviction 10 years ago.  I have been applying for one year waivers under INA 212(d)(3) for the past few years.  I was about to apply for a border crossing card to extend my waiver indefinitely, but I have been told that the INS is no longer issuing them to Canadians.  Is this true?  If it is true, is there anything else I can do?

In the past, border crossing cards ("BCCs") have been used by Canadians as a means of extending their nonimmigrant waivers indefinitely.  This is because under 8 CFR §212.4(c)(7), a INA §212(d)(3) waiver issued simultaneously with an INS BCC is valid for validity period of the border crossing card. Previously, BCCs were valid until revoked (indefinite).

It is true that the INS is not currently issuing BCCs to Canadians.  This is because 1996 amendments modified INA §101(a)(6)(15), requiring all BCCs to be machine readable and contain biometric identification information.  Until new INS regulations are issued, which provide for the issuance of these new "smart cards" to Canadians, the INS is not issuing any new border crossing cards.  Several INS district offices, including the Buffalo district, are beginning to issue five year waivers in the interim. 

Once the new INS regulations relating to BCCs are in force, they are expected to be valid for a period of ten years.