In September 2018, the U.S. Embassy issued an H-1B temporary worker visa to my client after previously finding he is permanently inadmissible under INA 212(a)(6)(C)(i), i.e. willful misrepresentation of material fact to gain U.S. immigration benefits. At the visa interview, he relied on my recommendations to explain why the misrepresentation bar does not apply to him.
The Embassy did not specify the factual basis for the misrepresentation finding. But years ago, my client’s H-1B visa was revoked by the U.S. Customs & Border Protection (CBP) and he was denied entry and allowed to withdraw his application for admission.
In particular, at primary inspection, the CBP officer asked him about his relationship with the H-1B petitioner (consulting firm) and the end client. Instead of naming the consulting firm as his U.S. employer, he mistakenly gave the name of the end client, where he was assigned to work. From there, confusion began. At secondary inspection, the CBP questioned him extensively and ultimately denied his entry under INA 212(a)(7)(A)(i)(I)(intended immigrant without valid travel document) – which CBP often uses as a catch-all provision to refuse admission to the U.S.
A few years later, the Embassy did issue him a new H-1B visa based on an approved I-129 petition by another U.S. employer, without raising the misrepresentation bar. But when he later requested a visa renewal to enter the United States following a trip abroad, the Embassy requested several documents related to his previous employments in the United States. These included the I-797 (receipt and approval) notices for all H-1Bs; all I-129/H-1B petitions filed on his behalf; Labor Condition Applications in support of the H-1B petitions filed on his behalf; support letter from the end client; employment contracts; and pay statements.
Despite receiving the requested documents, the Embassy denied the H-1B visa under INA 212(a)(6)(C)(i). When he applied again for the H-1B visa three months later – at the direction of his U.S. employer – the Embassy said nothing had changed and again refused the visa under section 212(a)(6)(C)(i).
After being denied the H-1B visa twice on misrepresentation grounds, he contacted me to prepare a Motion to Reconsider and Rescind Inadmissibility Determination Under INA 212(a)(6)(C)(i). The Embassy accepted my legal memorandum and some of the documentary evidence establishing the section 212(a)(6)(C)(i) bar was applied in error. It placed the case in administrative processing and then finally granted the visa two months later.
Although my client could have filed for a 212(d)(3) nonimmigrant waiver, I explained this would take a longer time to process and a waiver grant would still leave the section 212(a)(6)(C)(i) bar intact. He also had an approved I-140 immigrant petition filed on his behalf and the 212(d)(3) waiver would not overcome the inadmissibility ground to receiving an immigrant visa or green card. With no qualifying relative (U.S. citizen or permanent resident spouse or parent) to be eligible for a Form I-601/INA 212(i) immigrant waiver, he would be subject to being denied permanent residence as long as the 212(a)(6)(c) bar remained.
Furthermore, and most important, he had made no willful misrepresentation of material fact to obtain an H-1B visa or any other U.S. immigration benefit. I pointed out that if the Embassy agreed to rescind the section 212(a)(6)(C)(i) charge, he would not require a 212(d)(3) waiver for the H-1B visa to be issued.
Two months following the visa interview, the Embassy instructed my client to submit his passport. It issued the H-1B visa to him and he re-entered the United States without any problems.
Because the Embassy vacated the section 212(a)(6)(C)(i) charge, my client will not need a 212(d)(3) nonimmigrant waiver to receive a new H-1B or other nonimmigrant visa. He also will not require a Form I-601/INA 212(i) waiver to obtain permanent residence in the United States.
Through emails, telephone calls and video conferences, my client and I worked together to convince the Embassy to vacate the misrepresentation bar and grant the H-1B visa. This is a true success story in which he timely received the visa after being denied it twice in a row.
Founder & Principal Attorney
Dyan Williams Law PLLC
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 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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