Tag Archives: 212(d)(3) waiver

Approval of Form I-212 + Grant of 212(d)(3) Nonimmigrant Waiver = A True Success Story

To visit the United States, a visa-exempt Canadian citizen needed a Form I-212 approval because he was previously issued a removal order by an Immigration Judge and thus became subject to a 10-year bar to reentry under INA section 212(a)(9)(A)(ii). He also required a 212(d)(3) nonimmigrant waiver due to a 20-year-old conviction, for which he was found inadmissible under INA sections 212(a)(2)(A) (i)(II)(controlled substance violation) and 212(a)(2)(C)(i)(illicit trafficker in controlled substance).

With my legal representation, he received both a Form I-212 approval and 212(d)(3) nonimmigrant waiver grant from the U.S. Customs & Border Protection in April 2017.  He may now visit the United States as a visa-exempt Canadian citizen.

After the Immigration Court denied his motion to terminate removal proceedings and determined he is removable due to his criminal offense, the Canadian citizen reached out to me for help. Despite being married to a U.S. citizen, he could not obtain a family-based green card or immigrant visa because his criminal record makes him permanently inadmissible and  there is no immigrant waiver for his offense.

He and his U.S. citizen spouse had no choice but to establish a new life in his home country. His spouse, however, continued to hold her American-based job and commute between the two countries for employment purposes.  Being able to travel to the United States and accompany his American kids to see their mother is important to him. He could not re-enter the United States without the necessary permission and waiver.

I guided him on how to prove the favorable factors outweigh the negative factors to get an approval of his Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal. I also counseled him on how to address the 3 main factors for receiving a 212(d)(3) nonimmigrant waiver: the seriousness of his criminal offense that makes him inadmissible; his reasons for seeking entry into the U.S.; and why he does not pose a risk to the American community.

Facing writer’s block, my client relied on me to help him prepare his affidavit explaining the underlying circumstances that led to his conviction, describing the positive contributions he made in his profession, and the important roles he plays in his family. In addition, I advised him on the documentary evidence to submit to show he deserves the requested I-212 and 212(d)(3) waiver. Because he has an American spouse and previously applied for a marriage-based  green card, for which he is not eligible, he also had to overcome the presumption of immigrant intent to be admitted as a visitor.

Based on the legal briefs and application packets I prepared, the CBP granted both the I-212 and 212(d)(3) nonimmigrant waiver, which permits the Canadian citizen to visit the United States with his American family. Although there were many variables and obstacles in this case, it turned out to be a true success story for Dyan Williams Law PLLC and the client.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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212(d)(3) Nonimmigrant Waiver: When Do You Need It and How Do You Get It?

In this video, immigration attorney Dyan Williams discusses the 212(d)(3) nonimmigrant waiver, including answers to 4 frequently asked questions: do I need a visa with the waiver, do I qualify for the waiver, what must I prove to get the waiver, and how do I apply for the waiver?

For more information, read 212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

Contact Dyan for advice and guidance on the 212(d)(3) nonimmigrant waiver application process.

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. Immigration laws, regulations and policies are subject to change. The sharing or receipt of this information does not create an attorney-client relationship.

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Potential Solutions for Visa Refusal or Visa Denial

Some visa refusals and visa denials are proper, such as when you fail to provide the requested documents to prove visa eligibility or when you are inadmissible to the U.S. due to past actions. But when the decision is improper or can be overcome, you may take remedial action if you still want to come to the U.S.

A consular officer’s decision to deny or issue a visa is not subject to judicial review, based on the doctrine of consular non-reviewability. Because consular officers have so much discretion in issuing visa decisions, it’s especially important to address complications from the get-go.

When you’re faced with a visa refusal or denial, your potential solutions include:

1. Refiling for the Nonimmigrant Visa in Section 214(b) Situations

There is no waiver to overcome the INA 214(b) ground of ineligibility (failure to overcome presumption of immigrant intent) in nonimmigrant visa cases. But the finding is not permanent, which means you may later establish nonimmigrant intent by showing a considerable change in circumstances.

When your nonimmigrant visa (e.g. B-1/B-2 visitor visa or F-1/M-1 student visa) is denied due to failure to overcome the presumption of immigrant intent, you will need to reapply for the visa and, at the visa interview, present new, persuasive evidence of strong ties to your home country.

To avoid multiple visa refusals under section 214(b), you must build strong family roots, property ownership, employment ties, and other connections to your country that you cannot abandon and will cause you to depart the U.S. before your authorized stay expires.

In 214(b) visa refusal cases, you should not reapply for the B-1/B-2 visa, for example, until your personal, professional, and financial circumstances have changed significantly. Owning a business, investing in property, having a well-paid, steady job, or starting a family in your country are positive factors.

2. Requesting an Advisory Opinion (Administrative Review)

When your visa denial is based on questions of law, you may request an Advisory Opinion from the Department of State’s Visa Office in Washington D.C. The Visa Office will not review claims that the consular officer made a mistake of fact.

The Visa Office has a dedicated email channel, LegalNet, for you and/or your attorney to request a case-specific response on the interpretation or application of immigration law. An example is when a person is denied an H-1B or L-1 visa, which allows dual intent, under section 214(b) (failure to overcome presumption of immigrant intent). Another example is when a visa applicant is charged with 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain immigration benefit), even when the misrepresentation was not material and did not affect visa eligibility.

Within seven (7) business days of receiving a proper inquiry, LegalNet will provide notice that the inquiry has been received and is being processed. The complexity of the case and availability of required information affects the time frame for a substantive responses.

LegalNet will provide substantive responses only to the following types of inquiries:

  • Legal questions about a specific case when the applicant or representative has attempted to contact the consular post at least twice without receiving a final response, and where 30 days have passed since the second inquiry (unless action is required sooner to avert significant harm to the applicant)
  • Legal questions about a specific case in which the applicant or representative has received a final response from the consular post, but believes it to be wrong as a matter of law
  • Legal questions about specific cases involving T visas, U visas, Diversity visas, or adoption visas, and
  • Legal questions about specific cases involving the Child Status Protection Act (CSPA) and the Violence Against Women Act (VAWA).

The substantive response will be a summary of the advisory opinion forwarded to the consulate. Advisory opinions on applications or interpretations of law are binding on consular officers, but consular officers have sole authority to apply the law to the facts.

3. Filing a Motion to Reconsider and Rescind a Section 212(a) Inadmissibility Determination

Although there is no appeal process for a visa denial based on INA section 212(a) inadmissibility grounds, the U.S. Consulate or Embassy may reconsider its decision based on new evidence or legal arguments establishing you actually qualify for the visa.

In immigrant visa cases, the federal regulations allow  you to submit a motion to reconsider within one year of the visa denial to the consulate. No new application or filing fee is required when a timely motion is filed. Motions to reconsider must include relevant documentary evidence and legal claims to overcome the inadmissibility ground.

In nonimmigrant visa cases (except section 221(g) refusals), the only way to have your case reconsidered is to submit a new visa application and, at the visa interview, present a request to reconsider the inadmissibility finding.

It’s appropriate to file a motion to reconsider when the inadmissibility finding is based on a consular officer’s misinterpretation of the facts or law. But when the inadmissibility determination originates from the U.S. Department of Homeland Security (DHS), e.g. U.S. Citizenship & Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), the Consulate will generally instruct you to contact those agencies.

4. Applying for a Waiver of Inadmissibility 

When you are truly inadmissible or you are unable to get the erroneous inadmissibility charge vacated by the Consulate, you may apply for a waiver. A waiver grant is not a travel document to enter the U.S. Rather, it allows – but does not guarantee – admission on a Canadian passport (if you are a Canadian citizen) or a visa grant by the Consulate when you are inadmissible to the U.S.

Nonimmigrant waiver 

For nonimmigrant visa applicants, the 212(d)(3) waiver excuses almost all grounds of inadmissibility listed in section 212(a). This includes health-related grounds, criminal offenses, prostitution, smuggling, fraud or willful misrepresentation of material fact to gain immigration benefits, false claims to U.S. citizenship to gain benefits under federal, state or immigration law, and unlawful presence in the U.S. The only inadmissibility grounds that cannot be excused by the 212(d)(3) waiver involve security and related issues, foreign policy considerations, and participation in Nazi persecutions.

In Matter of Hranka, the Board of Immigration Appeals listed three factors that must be considered in deciding whether to grant or deny the waiver. These factors are also described in the Foreign Affairs Manual, which sets forth policies for the Department of State. They are:

  • The risk of harm to society if the applicant is admitted to the U.S.
  • The seriousness of the applicant’s prior immigration law or criminal law violations, which caused the inadmissibility.
  • The importance of the applicant’s reasons for seeking to enter the U.S.

The consular officer must recommend your nonimmigrant waiver request for approval before it is forwarded to the U.S. Customs & Border Protection for a final decision.

Immigrant waiver

For immigrant visa applicants, there are waivers for certain inadmissibility grounds, including fraud or willful misrepresentation, some criminal offenses, and unlawful presence.

You will need to determine whether a waiver is available for the specific section of law that makes you inadmissible. Even when a waiver is available, only certain immigrant visa applicants may qualify for it.

You qualify for the I-601 waiver [INA§ 212(i) waiver] of the lifetime fraud/willful misrepresentation bar under section 212(a)(6)(C)(i) if you are one of the following:

1. An intended immigrant who is the spouse, son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the §212(i) waiver.]

or

2. A VAWA self-petitioner who will suffer extreme hardship or whose U.S. citizen, lawful permanent resident, or qualified alien parent or child will suffer extreme hardship if you are not admitted to the U.S.

You qualify for the I-601 [INA§ 212(a)(9)(B)(v)] waiver of the 3/10 year unlawful presence bar if you are the spouse or son or daughter of a U.S. citizen or permanent resident (or the fiance(e) of a U.S. citizen K-visa petitioner) who will suffer extreme hardship if you are not admitted to the U.S. [NOTE: Being a parent of a U.S. citizen or permanent resident child does not make you eligible for the unlawful presence waiver.

You qualify for the I-601 [INA § 212(h)] waiver of crime-related inadmissibility grounds if you are one of the following:

1. An immigrant who is the spouse, parent, son or daughter of a U.S. citizen or permanent resident, or K visa petitioner, who will suffer extreme hardship if you are not admitted to the U.S.

2. A self-petitioning abused spouse or child of a U.S. citizen or permanent resident, under the Violence Against Women Act (VAWA).

3. Inadmissible only under prostitution grounds [sections 212(D)(i) or (D)(ii) of the INA]; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security to the United States.

4. Inadmissible due to certain criminal activities (e.g. a crime involving moral turpitude; single offense of simple possession of 30 grams or less of marijuana) that occurred more than 15 years before the date of application for a visa, admission, or adjustment of status; you have been rehabilitated; and your admission is not contrary to the national welfare, safety, or security of the United States.

The I-601 immigrant waiver under section 212(h) of the INA excuses  you from the following criminal grounds:

1. Crimes involving moral turpitude

2. One controlled substance violation involving simple possession of 30 grams or less of marijuana (or an equivalent amount of hashish)

3. Two or more criminal convictions (other than purely political ones) with an aggregate sentence imposed of at least five years

4. Prostitution

5. Unlawful commercialized vice, whether or not related to prostitution

6. Certain aliens involved in serious crimes who have asserted immunity from prosecution

The immigrant waiver is not available for all crime-related grounds of inadmissibility. In particular, persons charged with the following are not eligible for the waiver:

1. 212(a)(2)(A)(i)(II)[Controlled Substance Violation] – except when it relates to a single offense of simple possession of 30 grams or less of marijuana (or hashish); or

2. 212(a)(2)(C)[Controlled Substance Traffickers]

3. 212(a)(2)(G)[Foreign government officials who committed particularly severe violations of religious freedom]

4. 212(a)(2)(H)[Significant traffickers in persons/human traffickers]

5. 212(a)(2)(I)[Money laundering]

Waiver for prior removal orders (or certain immigration violations)

Advance permission to reapply for admission into the United States is needed when you are inadmissible under sections 212(a)(9)(A)(i)(e.g. expedited removal order) and (ii) (removal order by an Immigration Judge), as well as sections 212(a)(9)(C)(i)(I) (illegal re-entry after accruing more than one year of unlawful presence) and (II)(illegal re-entry following removal order).

When any of these inadmissibility bars apply, you need an I-212 waiver to be readmitted to the U.S. or to obtain a visa as an immigrant or nonimmigrant. For more information on these inadmissibility grounds, read our article, When do you need an I-212 Waiver (and how do you get it)?

The I-212 waiver request may be filed at any time, in conjunction with a visa application, when sections 212(a)(9)(A)(i) and (ii) apply. But when sections 212(a)(9)(C)(i)(I) and (II) apply and you are an immigrant visa applicant, you must be outside the U.S. and wait ten years abroad before filing  the Form I-212.  [Note: As an alternative, if you are a nonimmigrant visa applicant, you may seek a section 212(d)(3) nonimmigrant waiver, at any time, if you are inadmissible under section 212(a)(9)(C)(i)(I), i.e. unlawful presence of more than one year, in the aggregate, and subsequent reentry without admission or parole.]

A completed and signed Form I-212,  Application for Permission to Reapply for Admission into the United States after Deportation or Removal, must be submitted – except in few situations, such as when filing for a nonimmigrant visa at certain U.S. consulates. The Form I-212 filing fee and sometimes a biometrics fee are required.

Consult an immigration attorney with expertise in visa refusals or denials

When your visa is refused or denied, and you still wish to come to the U.S., you need to contact an immigration attorney to evaluate your visa eligibility, verify whether the consulate has valid grounds to deny the visa, and discuss or pursue possible remedies.

For more information, read our related article, Common Reasons for Visa Refusal or Visa Denial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Common Reasons for Visa Refusal or Visa Denial

A visa refusal or denial brings disappointment, frustration, and confusion over what to do next to enter the U.S. lawfully.

The U.S. Embassies and Consulates ultimately decide whether to grant you a nonimmigrant visa (e.g. B-1/B-2 visitor, F-1 student, H-1B temporary worker) or immigrant visa (e.g. family-based or employment-based) for admission to the United States. Proving you qualify for a visa is rarely easy.

Before you apply for a visa, it’s important to know the common reasons for a refusal or denial. They stem from the Immigration & Nationality Act, including sections 221(g)(lack of information or documents to show visa eligibility), 214(b)(failure to overcome presumption of immigrant intent in nonimmigrant visa cases) and 212(a)(inadmissibility grounds).

Soft refusal

1. Section 221(g) – Incomplete Application or Supporting Documentation

A visa refusal under section 221(g) of the INA means you did not present all the necessary information or documents for the consular officer to determine your visa eligibility. This is a soft refusal because you get the opportunity to correct the problem before a final decision is made.

In a 221(g) notice, you will be instructed on what additional evidence is needed and how to submit it. Examples include financial documents, affidavits of support, employment letter, and criminal records. If you do not submit the requested documents within one year, you will need to reapply for the visa and pay a new application fee.

You may also be informed that the Consulate will conduct further administrative processing of your application (e.g. security checks or further investigation by another agency such as USCIS) before it instructs you on next steps or issues a decision.  This can be triggered by database hits, fraud prevention unit investigations, alerts lists, and administrative errors.

Most administrative processing is resolved within 60 days of the visa interview, but the timing varies based on individual circumstances. For example, if the case is forwarded to USCIS or another agency for further review, this could take several months to complete.

When the documents submitted are not enough to overcome the 221(g) refusal or administrative processing reveals negative information that makes you inadmissible, your visa request will be denied.

Hard denial

2. Section 214(b) – Visa Qualifications and Immigrant Intent

Under section 214(b) of the Immigration and Nationality Act, a nonimmigrant is presumed to have immigrant intent, i.e. intent to remain permanently, rather than temporarily, in the United States. Nonimmigrant visa applicants (except for H-1B and L-1s) have the burden to overcome this presumption and prove they have no immigrant intent.

Section 214(b) denials apply only to nonimmigrant visa categories. For instance, B-1/B-2 visitor visa applicants must show they have strong ties to their home country, which they cannot abandon, and intend to visit the U.S. temporarily for business or pleasure. F-1 student visa applicants must further show they are qualified to pursue a full course of study, have the financial resources to pay tuition and living expenses, and intend to return to their country after completing their studies.

A 214(b) denial notice will state you have not demonstrated strong ties to your home country to overcome the presumption of immigrant intent and therefore do not meet the standards for a visa grant. The real, underlying reason, however, may be different.

Do you fit the profile of a person who tends to work in the U.S. without authorization or will likely overstay? Did you request a change of status from B-2 to F-1 during a previous trip to the U.S.? Have you ever entered the Diversity Visa lottery or had an I-130 immigrant petition filed on your behalf? Did you seem nervous during the visa interview? Did you give birth in the U.S. during a temporary visit? Do you make regular visits to the U.S. and stay for extended periods each time?

A consular officer’s doubts about your true intentions could lead to a 214(b) visa denial. It is often used as catch-all provision even when there is no valid reason to deny your visa application.

3. Section 212(a) – Inadmissibility Grounds

Section 212(a) of the INA lists the various grounds on which you are inadmissible to the U.S. (i.e. barred from entering the U.S. or from obtaining a visa).

Section 212(a)(6)(C)(i) of the INA states that you are permanently inadmissible if you, by fraud or willfully misrepresenting a material fact, seek to procure (or have sought to procure or have procured) a visa, other documentation, or admission into the U.S. or other immigration benefit.

Section 212(a)(2) of the INA lists crime-related grounds that permanently bar you from entering the U.S. They include crimes involving moral turpitude (that do not qualify for the petty offense or youthful offender exception), controlled substance violations, multiple criminal convictions, and controlled substance trafficking (i.e. U.S. consular officer or U.S. government knows or has reason to believe you are a controlled substance trafficker).

Section 212(a)(9)(B)(i)(I) of the INA states the 3 year bar to re-entry applies if you were unlawfully present in the U.S. for more than 180 days, but less than one year, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S. in a single ongoing period or stay (i.e. continuous period of unlawful presence).

Section 212(a)(9)(B)(i)(II) of the INA states the 10 year bar to re-entry applies if you were unlawfully present in the U.S. for one year or more, and then depart the U.S. The U.S. government adds up all the days you were unlawfully present in the U.S., even if they were from different periods or stays (i.e. the aggregate period of unlawful presence).

Section 212(a)(9)(A)(i) of the INA states you have a five-year bar to reentry from the date of your removal if:

  • You were removed upon arrival in the U.S., i.e. ordered removed in an expedited removal proceeding by U.S. Customs & Border Protection (CBP) at a U.S. port of entry.
  • You were placed in removal proceedings upon arrival in the U.S. and then ordered removed by an immigration judge as an arriving alien.

Section 212(a)(9)(A)(ii) of the INA states you have a 10-year bar to reentry from the date of your removal if:

  • You were ordered removed, other than as an arriving alien, including by an immigration judge in removal proceedings.
  • You failed to timely depart the U.S. under an order of voluntary departure issued by an immigration judge, causing the voluntary departure to be converted to a removal order.
  • You departed the U.S. willingly, but before removal proceedings were concluded.
  • You left the U.S. while a removal order was outstanding.

Section 212(a)(9)(A)(ii) of the INA states you have a 20-year bar to reentry from the date of your removal if you were ordered removed from the U.S. more than once, whether as an arriving alien or not. It permanently bars you from reentry from the date of your removal if you were convicted of an aggravated felony.

Section 212(a)(9)(C) of the INA states you are permanently barred if you reentered or attempted to reenter the U.S. illegally after you accrued more than one year of unlawful presence in the U.S. and left, or after you were ordered removed from the U.S. The permanent bar, due to illegal entry or attempted illegal entry, applies only if you accrued the (1+ year) unlawful presence or were ordered removed on or after April 1, 1997, or entered or attempt to reenter the U.S. unlawfully on or after April 1, 1997.

Notification of Visa Refusal or Denial

When a consular officer refuses or denies your visa request, you will be informed orally and given a written notice with boxes checked off from a boilerplate list of statutory law.

In both immigrant and nonimmigrant visa cases, the officer must provide timely, written notice of:

  • The provision(s) of law on which the refusal is based
  • Any waiver of inadmissibility available (when  212(a) ineligibility grounds apply)

In immigrant visa cases, the written notice should include the factual basis for the refusal (unless such information is classified) ). The consular officer should refer to pertinent written or oral statements of the applicant, a conviction, medical report, false document, previous refusal, or the like, as the basis of the refusal.  The officer is also instructed to explain the law simply and clearly.

In Kerry v. Din, the U.S. Supreme Court issued its June 15, 2015 decision stating consular officers need not provide the factual basis for an immigrant visa denial when terrorism or national security concerns are involved. In that case, a foreign national spouse was denied her immigrant visa based on an unexplained allegation that her Afghani, U.S. citizen husband (the I-130 petitioner) supported terrorism. The court ruled that in these circumstances, a consular officer may simply cite to the statutory law without providing specific reasons for the visa denial.

In nonimmigrant visa cases, the written notice rarely informs you of the specific facts on which the consular office relied to made the decision. Usually, it will only cite to the statute (law) under which your visa was denied. Therefore, it helps to listen closely to the consular officer’s oral notice.

Consult an immigration attorney with expertise in visa refusals and denials

To prevent or overcome a visa denial, you should seek guidance from an immigration attorney who deals with consular processing. A skilled attorney can evaluate your case to verify your visa eligibility, help you respond to a request for more documents, challenge erroneous inadmissibility findings, and file for any necessary and available waivers.

For more information, read our related article, Potential Solutions for Visa Refusal or Visa Denial.

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Grant of Motion to Vacate Inadmissibility (Misrepresentation) Finding + Issuance of F-1 Student Visa = A True Success Story

On February 13, 2017, the U.S. Embassy granted my client’s Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i) (willful misrepresentation of material fact to gain immigration benefit) and issued his F-1 student visa. He may now pursue his studies in the United States, starting in fall 2017, after he was previously denied the visa two and a half years ago for misrepresenting information in his application.

The U.S. Embassy approved the motion and F-1 visa request within 3 weeks of when my client appeared for his visa interview and asked for a rescission of the inadmissibility finding.

Prior to the visa interview, I guided him in gathering documentary evidence and preparing his affidavit (written testimony) explaining his reasons for failing to disclose certain information in his prior student visa application. Citing to the record, I prepared the strongest legal briefs in support of a Motion to Reconsider and Rescind Inadmissibility Finding, as well as a 212(d)(3)(A) nonimmigrant waiver application as a backup option.

In his first F-1 student visa application, my client failed to disclose his prior names and previous visit to the United States. After the U.S. Embassy charged him as inadmissible and denied his visa due to misrepresentation, it instructed him to file for a nonimmigrant waiver of inadmissibility.

He did not file for the waiver, but instead hired another attorney to challenge the inadmissibility finding. The attorney submitted a Request for Advisory Opinion to the Visa Office, but did not counsel him to re-apply for the F-1 student visa and appeal directly to the U.S. Embassy to vacate the inadmissibility finding.

By the time he consulted me, he had been waiting for more than 2 years since his first F-1 visa application was denied and more than 1 year since his prior attorney filed the Request for Advisory Opinion (with no decision to date).

A willful misrepresentation charge under section 212(a)(6)(C)(i) permanently bars an applicant from obtaining a visa or entering the United States. To be inadmissible on this ground, he must not only willfully misrepresent information, but the information must also be material to his visa eligibility.

After reviewing my client’s case, I concluded his refusal to disclose information – which was specifically requested on the visa application form – did not affect whether he qualified for the visa. He also had compelling reasons for not providing the information, which had nothing to do with obtaining the visa.

I advised him to re-apply for the F-1 visa and, as option A, file a motion to vacate the inadmissibility finding directly with the U.S. Embassy.  He also agreed to have a 212(d)(3)(A) nonimmigrant waiver request prepared, as option B, in the event the U.S. Embassy denied his motion to vacate.

The U.S. Embassy agreed to vacate the 212(a)(6)(C)(i) charge and issue the F-1 visa after I presented a convincing legal argument, persuasive documentary evidence, and a detailed affidavit from my client showing he needed to enter the United States to attend school, has strong ties to his country, would pose no harm to the community, and did not commit material misrepresentation to be inadmissible.

The 212(d)(3)(A) waiver request was available as an alternative solution, but it normally takes at least four months to process. The client needed to receive his visa by May 1st to confirm attendance at the school, which had deferred his admission for more than two years and could not hold his place beyond fall 2017.

He was relieved and happy when the U.S. Embassy granted the motion to vacate inadmissibility finding and issued the F-1 visa by February 13th, which spared him from using the lengthier waiver application process.

Because the permanent bar to receiving a visa or entering the United States under 212(a)(6)(C)(i) no longer exists, it will be much easier for him to obtain visa renewals and travel to the United States.

My client, who lives in East Asia, communicated with me by Skype initially, and then by telephone and email during the course of representation. At the time he consulted me, he had contacted another attorney to file a 212(d)(3)(A) waiver request. The attorney told him it would take at least 4 months to prepare the waiver application and if he wanted it sooner, he would have to pay a much higher fee. The attorney did not advise him to file a motion to vacate the inadmissibility finding with the U.S. Embassy, even though this was the better option under the circumstances.

I prepared both the motion and the 212(d)(3)(A) waiver request at a reasonable fee within 2 months. The foreign national was pleased with the collaborative process and thankful for the favorable, timely results. This is a true success story in early 2017 for Dyan Williams Law PLLC.

Helping clients overcome visa refusals through the rescission of inadmissibility findings or through waiver grants are among my top areas of expertise. Enabling a foreign national to obtain a visa to enter the U.S. lawfully – especially after he has been deemed inadmissible- takes a lot of time, attention, and work. But the potential benefits are worth the dedicated effort.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
dw@dyanwilliamslaw.com

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each legal case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Photo by: Tara R.