Category Archives: expedited removal

U.S. Immigration Risks in Claiming F-1 OPT or H-1B Status When There is No Real Job

Posted on May 14, 2021 | Comments Off on U.S. Immigration Risks in Claiming F-1 OPT or H-1B Status When There is No Real Job

Are you an F-1 student or H-1B worker who claimed to work for a U.S company when there was no actual job?

Did the company issue W2s or pay stubs showing you were paid when you really were not?

If you seek to maintain F-1 OPT, F-1 STEM OPT or H-1B status through employment – when there is no real job – you run the risk of being found inadmissible under INA 212(a)(6)(C)(i). This law states that you have a lifetime bar if you engage in fraud or willful misrepresentation of a material fact to obtain a U.S. immigration benefit.

Being inadmissible disqualifies you from getting a change or extension of status, a new visa, or lawful entry to the United States. While a 212(d)(3) nonimmigrant waiver or I-601/INA 212(i) immigrant waiver might solve the issue, it doesn’t work in every case. It’s best to avoid a fraud/misrepresentation charge altogether.

Episode 11 of The Legal Immigrant podcast covers:

1) The different contexts in which U.S. Customs & Border Protection, USCIS and U.S. Embassies and Consulates can make the 212(a)(6)(C)(i) charge 

2) F-1 OPT and STEM OPT rules to follow

  • Time restrictions for submitting Form I-765, application for employment authorization
  • Unemployment grace period of 90 days for F-1 OPT and an additional 60 days for F-1 STEM OPT (i.e. total of 150 days during entire post-completion OPT period)
  • F-1 OPT and F-1 STEM OPT must involve at least 20 hours of work related to field of study
  • F-1 may include a paid job, a paid internship, an unpaid internship, volunteer work, contract work, agency work, or self-employment
  • F-1 STEM OPT must include paid employment with a company that is enrolled in the E-Verify program

3) Immigration fraud investigations and related problems

  • Many F-1 and H-1B visa holders, particularly from China, get their visas revoked or denied or are refused entry to the United States because they had listed Findream or Sinocontech to receive work authorization
  • F-1 and H-1B visa holders, most from India, face U.S. immigration and visa problems if they listed companies like Integra Technologies LLC, AZTech Technologies, Andwill, Wireclass or Tellon Trading to obtain OPT, STEM OPT or other work permit
  • Problems include refusal of entry to the US, visa denials, visa revocations, and denials of change/extension of status requests. In some cases, a 212(a)(6)(C)(i) charge is made.

4) 3 key indicators that the petitioner or employer may be flagged 

  • Does the company require you to pay a training fee, including before it issues the job offer letter or Form I-983 training plan? 
  • Does the company fail to assign roles and responsibilities as stated in the job offer letter, Form I-983 for STEM OPT, or Form I-129 Petition for H-1B? 
  • Does the company offer employment verification, pay stubs and W2s when there was actually no real work or no pay received for an F-1 STEM OPT or H-1B position?

5) The longer you are associated with a flagged company, the more U.S. immigration risks and visa problems you will have

  • As soon as you find out there’s no real job, move on quickly. 
  • You might be tempted to use fake employment to maintain status or stop the accrual of unlawful presence. But you run the risk of not only falling out of status, but also being charged with a lifetime inadmissibility bar under INA 212(a)(6)(C)(i). 
  • US immigration agencies are less forgiving when it comes to a fraud or misrepresentation charge because it means you’ve been found to have lied to the U.S. government to gain an immigration benefit. 

Subscribe to The Legal Immigrant podcast at Apple Podcasts or other apps.

If you prefer to read, download transcript of episode 11.

For more information, see:

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in expedited removal, immigration fraud, INA 212(a)(6)(C)(i), The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

B-1 Visitor Visa: Traveling to the U.S. for Business

Posted on April 5, 2021 | Comments Off on B-1 Visitor Visa: Traveling to the U.S. for Business

Is the B-1/B-2 the right visa to enter the U.S. to participate in a business meeting? Attend a conference or convention? Negotiate a contract?

Yes on the B-1, but no on a B-2 only.

If you have a combination B-1/B-2 visa, you should inform the U.S customs officer of the main purpose of your visit. Get admitted in the right classification. The B-1 is more flexible than the B-2 classification. You may engage in business activities and tourism with a B-1. But the B-2 is for tourism and social visits only, with very limited exceptions in special circumstances.

The B-1 visa or combined B-1/B-2 visa is for nonimmigrants who seek to enter the U.S. temporarily for business reasons and tourism. To get the visa or gain entry to the U.S. on this visa, you need to show you will participate in only permitted activities.

Episode 10 of The Legal Immigrant podcast summarizes:

(A) What you can do in the U.S. as a B-1 visitor – 

1) Business activities of a commercial nature. Examples:

  • engage in commercial translations
  • negotiate a contract
  • participate in business meetings
  • litigate, including to participate in a lawsuit, take a claim to court, or settle an estate
  • attend a conference
  • do independent research

2) Professional activities that do not lead to compensation or employment in the United States. Examples:

  • ministers of religion and missionaries doing missionary work
  • volunteers participating in a recognized voluntary service program
  • professional athletes competing in a tournament or sporting event of international dimension
  • investors seeking investments in U.S. 

3) Limited activities that do not amount to substantive performance of work. Examples:

  • commercial or industrial workers needed to install, service or repair equipment as required by contract of sale
  • certain foreign airline employees in an executive, supervisory or highly technical role who travel to the U.S. to join an aircraft for onward international flight
  • third/fourth-year medical students pursuing medical clerkship at U.S. medical school’s hospital (without remuneration) as part of a foreign medical school degree

(B) U.S. immigration problems that might arise if you do remote work (including work for a foreign employer) while you are in the U.S. as a visitor 

  • the connection between U.S. tax law and U.S. immigration law
  • the risk of being found to have violated status if you perform activities that are not entirely consistent with the terms and conditions of the visa

(C) The eligibility requirements for the visitor visa

  • maintain a residence abroad that you do not intend to abandon
  • intend to stay in the U.S. for a specific, limited period
  • seek entry solely to engage in legitimate activities permitted on the visa
  • have no U.S. immigration violations or criminal offenses that make you inadmissible  or otherwise qualify for a waiver of inadmissibility

While the B-1 visa and status allow a wider range of visitor activities in the U.S. — compared to the B-2 visa — it has its limits.

A visitor visa holder is not guaranteed admission to the U.S. for temporary stays. At the U.S. port of entry, the U.S. Customs & Border Protection may issue an expedited removal order if it determines the person intends to engage in activities outside the purpose of the visitor visa, or has previously violated status during earlier visits.

The expedited removal order itself creates a 5-year bar to re-entry under INA 212(a)(9)(A). If the CBP also charges the person with fraud or willful misrepresentation of material fact to obtain a visa or other U.S. immigration benefit, this leads to a permanent bar under INA 212(a)(6)(C)(i).

To request a consultation on visitor visa problems, you may submit an inquiry by email at info@dyanwilliamslaw.com or by online message at www.dyanwilliamslaw.com. 

For more information, see:

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in expedited removal, immigration fraud, nonimmigrant visa, The Legal Immigrant - Immigration Blog

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Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

Posted on February 24, 2021 | Comments Off on Immigration Reform Update: Earned Path to Citizenship and Repeals of Certain Inadmissibility Bars

On February 18, the U.S. Citizenship Act of 2021 was introduced in the House by California Congresswoman Linda Sánchez and in the Senate by New Jersey Senator Robert Menendez. The White House first announced the bill on January 20, which was the first day of the Biden Administration.

The bill is 353 pages long. It contains sweeping provisions that, if passed, will overhaul many parts of the U.S. immigration system.

It seeks to give certain undocumented immigrants Lawful Prospective Immigrant (LPI) status and an 8-year path to U.S. citizenship; allow eligible DREAMERS, TPS holders and farmworkers to immediately apply for permanent residence; repeal the 3/10 year unlawful presence bar under INA 212(a)(9)(B) and the permanent bar under INA 212(a)(9)(C); and create an exception to the misrepresentation of citizenship bar for any person who was under age 21 when the false claim was made.

In Episode 8 of The Legal Immigrant podcast, I focus on the following provisions in the reform bill:

1. Section 1101, Adjustment of Status of Eligible Entrants to that of Lawful Prospective Immigrant (LPI), and Section 1102, Adjustment of Status of Lawful Prospective Immigrants

  • Provides earned 8-year path to citizenship for certain undocumented immigrants who have been present in the U.S. on or before January 1, 2021, and certain persons who were removed from the U.S. on or after January 20, 2017, but were inside the U.S. for at least 3 years prior

2. Section 3104, Promoting Family Unity

  • Repeals the 3/10 year bar under INA 212(a)(9)(B) due to accrual of more than 180 days of unlawful presence in the U.S. prior to departure
  • Eliminates the permanent bar under INA 212(a)(9)(C) due to illegal re-entry following more than 1 year of unlawful presence or following a removal order 
  • Creates exception to the false claim to U.S. citizenship bar under INA 212(a)(6)(C)(ii) for persons who made the misrepresentation when they were under age 21

Key points to consider: 

1.  The Immigration Reform bill is bicameral (introduced in the House and Senate on February 18), but is not bipartisan (sponsored by Democrats only and no Republicans). 

The comprehensive nature of the bill and the big changes proposed will make it harder to get the necessary votes. Moderation could be needed especially when Democrats have a slight margin in the House and a 50-50 split in the Senate. Vice President Harris has the tie-breaking vote.  But a supermajority of 60 senators is normally needed to pass major legislation in the Senate.

To move forward, the full legislation might have to be split up into separate smaller bills, or get added to the budget reconciliation process. Some Republicans have voiced opposition to the Biden Administration’s approach to immigration reform. 

2.   Even if the law is passed and signed by the President, it may take up to a year for the new rules to be drafted.  And it will take some time for the new application processes and forms to be rolled out and implemented. The applicant will also have to gather documents, including evidence of identity, proof of physical presence in the U.S. for the period that is required by law, and supporting records for any waiver of inadmissibility that is needed. 

3.     If you already qualify for another way to immigrate to the United States, such as by employment-based immigration or by a legal, bona fide marriage to a U.S. citizen, it’s better to use the existing path instead of wait for the results of this reform bill. 

4.     You must not deliberately fall out of status or illegally re-enter the U.S in the hope that you will be eligible for LPI status or other immigration benefits that have yet to be passed into law. Unlawful presence and illegal re-entries to the U.S. continue to have serious immigration consequences unless the law is amended to get rid of them.

Resources cited: 

For more information on inadmissibility waivers, see:

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

When do you need an I-601 Waiver due to immigration fraud or misrepresentation (and how do you get it)?

When do you need an I-601 waiver due to unlawful presence (and how do you get it)?

212(d)(3)(A) Nonimmigrant Waiver: Advantages and Disadvantages

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The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, citizenship, deferred action, expedited removal, green card, immigrant visa, immigration fraud, The Legal Immigrant - Immigration Blog, waiver

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The Legal Immigrant PODCAST is Now Up!

Posted on January 4, 2021 | Comments Off on The Legal Immigrant PODCAST is Now Up!

The month of January signals new beginnings and fresh starts. In December 2020 – with the new year approaching – I finally took steps to launch The Legal Immigrant podcast.

Through success stories and Q&As, the show will cover U.S. immigration problems that we help our clients solve.

Episodes 1 and 2 are now up. The podcast is available HERE  on the show’s website. Or find it on podcast apps like Apple Podcasts, Spotify, Player FM, and Listen Notes or via RSS feed.

At the start of 2020, I had tentative plans to launch a podcast. As a solo immigration lawyer and a productivity coach, I was conflicted on whether to start one or two podcasts. Over time, this project moved to the backburner while COVID-19, civil unrest, school closures, the November Elections, and other changes were at front and center.

Although the U.S. and other parts of the world are still not back to pre-COVID-19 “normal,” we can still attend to the essentials. We have a unique opportunity to build resilience, show grace to others, and learn new ways to maintain human connection.

Besides launching The Legal Immigrant podcast, I started another podcast, The Incrementalist. This productivity show will discuss how to make big changes or finish a big project in small steps, with the Incrementalist approach.

There’s a content strategy to release new episodes over the coming weeks. It will take systems – not goals – to keep the shows going. Stay tuned!

In the meantime, check out the first two episodes of The Legal Immigrant. If you find the podcast helpful, please share it with others. And subscribe so you don’t miss new episodes. 

And if you’d like to check out my other podcast, The Incrementalist, click HERE for the show’s website.

Your downloads, shares and subscriptions will help to grow the shows. In return, I will aim to provide valuable content and build connection with listeners through podcasting.

Thank you for your support and audience.

All the best in 2021,

Dyan Williams

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Posted in adjustment of status, bona fide marriage, citizenship, expedited removal, green card, H-1B, I-751, immigrant petition, immigrant visa, immigration consequences of criminal convictions, immigration fraud, K-1 visa, K-3 visa, marriage fraud, naturalization, nonimmigrant visa, success story, The Legal Immigrant - Immigration Blog, The Productive Lawyer - Productivity + Lawyer Wellbeing Blog, waiver, willful misrepresentation

Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

Posted on December 26, 2020 | Comments Off on Consent to Reapply for Admission – I-212 Waiver: Remedy to Overcoming INA 212(a)(9)(A) and (C) Bars

In this video, attorney Dyan Williams explains the remedy to obtaining a visa or lawful admission to the U.S. when you are barred due to a removal order, illegal re-entry, or aggravated felony conviction. The Consent to Reapply for Admission (I-212 Waiver) is needed when you are inadmissible under INA 212(a)(9)(A) and INA 212(a)(9)(C).

Get answers to these frequently asked questions:

1) Do I need a visa with the CTR?

2) Do I qualify for the CTR?

3) What must I prove to get the CTR?

4) How do I file for the CTR?

5) Do I need an attorney to file for the CTR?

For more information, see:

When do you need an I-212 Waiver (and how do you get it)?

What should you do to get your I-212 Waiver?

Approval of Form I-212 + Grant of Immigrant Visa= A True Success Story

I-212 Waiver + Diversity Immigrant Visa = A True Success Story

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

Contact Dyan for advice and guidance on the Consent to Reapply for Admission (I-212 Waiver).

This video provides general information and is for educational purposes only. Do not consider it as legal advice for any individual case or situation. U.S. 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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Posted in adjustment of status, expedited removal, green card, immigrant petition, immigrant visa, immigration consequences of criminal convictions, nonimmigrant visa, The Legal Immigrant - Immigration Blog, Videos, waiver

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