Category Archives: H-1B

Trump’s $100,000 Fee in New H-1B Petitions: What We Know (So Far)

Posted on September 22, 2025 | Comments Off on Trump’s $100,000 Fee in New H-1B Petitions: What We Know (So Far)

On September 19, President Trump signed a Proclamation restricting the entry of certain H-1B workers into the United States, unless the Form I-129 (H-1B) petition was accompanied by a $100,000 fee from the employer. The restriction is effective as of September 21, and will expire in 12 months, absent an extension from the Trump Administration.

Tech giants like Microsoft, Amazon and JPMorgan immediately advised their H-1B workers to remain in the U.S. until further guidelines are provided by the Administration. But the impact of the Proclamation, titled Restriction on Entry of Certain Nonimmigrant Workers, is not as dire as many news media reports and social media posts initially reported.

This major shift in H-1B policy adds a $100,000 payment to the existing filing fees and attorney fees related to Form I-129 petitions. Whether it will encourage U.S. employers to hire U.S. workers or relocate jobs to offshore workforces is uncertain.

To reduce panic, White House press secretary Karoline Leavitt posted on X on September 20, “This is NOT an annual, fee, but a one-time fee that applies only to the petition.” She added, “Those who already hold H-1B visas and are currently outside of the country right now will NOT be charged $100,000 to re-enter.” She further wrote, “This applies only to new visas, not renewals, and not current visa holders.”

The White House has since clarified that the fee is required for new H-1B petitions submitted after 12:01 a.m. ET Sunday, September 20, not just those in the 2026 H-1B annual lottery.

A USCIS Memorandum, dated September 20, 2025, confirms the Proclamation applies prospectively to new H-1B petitions filed on September 21 or later, including future H-1B cap petitions or petitions requesting consular processing.

The Memorandum clarifies that it does NOT apply to applicants who:

1. are the beneficiaries of pending H-1B petitions that were filed prior to September 21, 2025;

2. are the beneficiaries of currently approved H-1B petitions; or

3. already have valid, unexpired H-1B visas.

The U.S. Customs and Border Protection (CBP) issued guidance stating the Presidential Proclamation does not restrict the entry of current H-1B visa holders. H-1B employees with valid Form I-797 Approval Notices and H-1B visas may travel as normal and will not be subject to the fee requirement to re-enter the United States.

What Are the Requirements and Effects of the Proclamation?

The Proclamation states in Section 1:

“(a)  Pursuant to sections 212(f) and 215(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(f) and 1185(a), the entry into the United States of aliens as nonimmigrants to perform services in a specialty occupation under section 101(a)(15)(H)(i)(b) of the INA, 8 U.S.C. 1101(a)(15)(H)(i)(b), is restricted, except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000 — subject to the exceptions set forth in subsection (c) of this section. This restriction shall expire, absent extension, 12 months after the effective date of this proclamation, which shall be 12:01 a.m. eastern daylight time on September 21, 2025. 

 (b)  The Secretary of Homeland Security shall restrict decisions on petitions not accompanied by a $100,000 payment for H-1B specialty occupation workers under section 101(a)(15)(H)(i)(b) of the INA, who are currently outside the United States, for 12 months following the effective date of this proclamation as set forth in subsection (a) of this section.  The Secretary of State shall also issue guidance, as necessary and to the extent permitted by law, to prevent misuse of B visas by alien beneficiaries of approved H-1B petitions that have an employment start date beginning prior to October 1, 2026.

(c)  The restriction imposed pursuant to subsections (a) and (b) of this section shall not apply to any individual alien, all aliens working for a company, or all aliens working in an industry, if the Secretary of Homeland Security determines, in the Secretary’s discretion, that the hiring of such aliens to be employed as H-1B specialty occupation workers is in the national interest and does not pose a threat to the security or welfare of the United States.”

In short, the Proclamation:

(1) Restricts entry of H-1B nonimmigrants to the U.S. unless the H-1B (Form I-129) petition to USCIS is accompanied by a $100,000 payment.

(2) Directs the Secretary of Homeland Security to restrict approvals of petitions for H-1B workers who are currently outside the United States, if the petition is not accompanied by the $100,000 payment.

(3) Allows case-by-case exemptions if the Secretary of Homeland Security, in the Secretary’s discretion, determines the hiring of the H-1B worker is in the national interest and will not pose a threat to the security or welfare of the United States.

The Proclamation further requires the following:

(a) The employers shall, prior to filing an H-1B petition for a worker outside the United States, obtain and retain documentation showing the $100,000 payment was made.

(b) The Secretary of State shall verify receipt of payment during the H-1B petition process and shall approve only those petitions for which the employer has made the payment.

(c) The Department of Homeland Security and the Department of States shall deny entry to any H-1B nonimmigrant for whom the employer has not made the payment and take all other necessary and appropriate action to implement the proclamation.

(d) No later than 30 days following the completion of the H-1B lottery that occurs after the proclamation, the Department of State, the Department of Labor, the Department of Homeland Security and the Attorney General shall make a recommendation on whether to extend the restriction in the interests of the United States.

(e) The Secretary of Labor shall initiate rulemaking to revise the prevailing wage levels for the H-1B program.

(f) The Secretary of Homeland Security shall initiate rulemaking to prioritize high-skilled and high-paid H-1B workers.

Why Did the Trump Administration Impose the $100,000 Fee?

The Administration says the H-1B program was created to bring temporary workers into the United States to perform additive, high-skilled functions, but it has been used to replace, rather than supplement, American workers with lower-paid, lower-skilled labor.  They note the H-1B program largely displaces U.S. workers and suppresses wages because foreign nationals are more willing to work for lower pay.

The Proclamation states that information technology (IT) firms, in particular, have abused the H-1B program, which significantly harms American workers in computer-related fields. On average, the share of IT workers in the H-1B program grew from 32% in fiscal year 2003 to an average of over 65% in the last 5 fiscal years.

The Proclamation also notes that abuse of the H-1 B program is a national security threat. H-1B reliant outsourcing companies have been found to engage in visa fraud, conspiracy to launder money, conspiracy under the Racketeer Influenced and Corrupt Organizations Act, and other illegal activities to recruit foreign workers to the U.S.

H-1B workers must have at least a bachelor’s degree in the relevant field of study to fill a position in a specialty occupation requiring certain knowledge, skills and educational credentials. But the H-1B employer is not required to recruit U.S. workers, unless it is found to be H-1B dependent or a previous willful violator of H-1B requirements.

According to the White House, the restrictions will curb abuse of the H-1B program while allowing employers to hire the best of the best H-1B workers. It is not clear how the change will be implemented or whether it will be subject to legal challenge in federal courts. In the meantime, employers and foreign national workers may consider other visa options, such as the O-1 (Individuals with Extraordinary Ability or Achievement), L-1 (Intracompany Transferee) or TN (Canadian and Mexican citizens in specific professional occupations).

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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CBP Vacates Expedited Removal Order + Rescinds INA 212(a)(6)(C)(i) Charge = A True Success Story

Posted on February 6, 2025 | Comments Off on CBP Vacates Expedited Removal Order + Rescinds INA 212(a)(6)(C)(i) Charge = A True Success Story

Within 5 months, the U.S. Customs & Border Protection (CBP) in San Francisco, CA vacated its Expedited Removal Order (ERO) and rescinded its INA 212(a)(6)(C)(i) inadmissibility finding against my client, upon receiving our Motion to Reconsider the adverse decisions.

The CBP agreed he should not have been charged as inadmissible under INA 212(a)(7)(A)(i)(I) (intended immigrant without proper immigrant visa or other travel document) to be issued an ERO, which barred him for 5 years from the United States, pursuant to INA 212(a)(9)(A)(i).

We also convinced the CBP that the permanent bar under INA 212(a)(6)(C)(i) was made in error. The legal argument and documentary evidence showed he did not use fraud or willfully misrepresent any material fact to obtain H-1B status.

Refusal of H-1B Admission to the United States Despite the Presentation of Valid Travel Documents and No Prior Violation of Nonimmigrant Status

My client presented his valid Canadian passport and Form I-797, Approval Notice for H-1B petition, when he requested admission in H-1B status. He was, however, placed in secondary inspection at the San Francisco International Airport for further questioning. Upon determining that the true purpose of his request for admission was unclear, the CBP issued the Expedited Removal Order under (7)(A)(i) and included the lifetime bar under (6)(C)(i) as an additional inadmissibility ground. The CBP did not give him the option of withdrawing his application for admission to the United States.

The Record of Sworn Statement (Form I-867A and Form I-831) indicated my client had good-faith intent to resume his employment at the H-1B petitioner, even though he had quit his position prior to his departure from the U.S. The Form I-797A, Approval Notice for the H-1B petition was still valid and was not withdrawn by the petitioner or revoked by USCIS.

Facts and Arguments Supporting Reconsideration of Inadmissibility Findings

Although my client took an extended break from his H-1B employment, he deemed it to be a “mutual separation” at most. It was, after all, the employer’s suggestion that he take a break when he declined to attend the company retreat due to health issues and personal reasons. He truly believed the company was open to having him resume his H-1B position.

While he was overseas, the employer was not required to pay him a salary and he was not obligated to do any work to maintain his H-1B status or avoid getting the H-1B status revoked. He did not consider his departure to be a final termination of employment or a paid leave of absence, and the H-1B petitioner did not indicate to him that it was.

Even if he had inadvertently terminated his employment, through voluntarily resignation, he did not violate his H-1B status or accrue any unlawful presence to be prohibited from re-entering the United States. He was not subject to the 3/10- year bar to reentry under INA 212(a)(9)(B)(i) when he requested re-entry in H-1B status.

Under the federal regulations at 8 CFR 214.1(l)(2), there is a discretionary grace period allowing H-1B workers to be considered as having maintained status following the termination of employment for up to 60 consecutive calendar days or until the end of the authorized validity period, whichever is shorter.

During the 60-day grace period, the H-1B worker may find a new employer to file an H-1B extension of stay and change of employer request with USCIS. Otherwise, he may leave the United States within that period to avoid a violation of status. My client departed the United States well before the end of the grace period and spent his extended break in his native country.

At the time of his departure, my client and his manager discussed the possibility of his returning to his H-1B position after he recovered from his burnout. A month before he traveled back to the United States, he had a check-in call with his manager, which made him reasonably believe he could resume his position.

In the Motion to Reconsider, I pointed out that a terminated employee with no option of returning to his employment or of being rehired would not have such a check-in discussion with an employer. The petitioner gave him no confirmation of a final termination of employment and no notice that he must not use the H-1B Approval Notice to request admission to resume his position.  

When he requested H-1B admission at the U.S. port of entry, my client fully intended to continue discussions with his manager to restart his position. If he really had no plans to return to his employment, he had a Canada passport to request entry as a B1/B2 visitor to wrap up his personal affairs and continue business discussions with his manager.

An applicant may receive B-1 status if he is coming to the United States to engage in commercial transactions, negotiate contracts, consult with business associates, and participate in business meetings or conferences. My client could have legitimately requested admission as a visitor if his sole purpose was to engage in recreational activities or to have further employment negotiations or business meetings with his manager and then timely depart the United States to seek readmission in H-1B status.

He, however, chose to request H-1B admission because he fully intended to return to the employer. He assumed they were open to having him rejoin the company.

In the initial consultation with the client, I explained that he had two options:

1. File a Motion to Reconsider and Vacate the Expedited Removal Order and INA 212(a)(6)(C)(i) Bar with the CBP. A fully positive outcome in this requested relief gets rid of both the 5-year bar due to the Expedited Removal Order and the permanent bar under (6)(C)(i).

The drawback is that such motions are not routinely filed by CBP and are rarely granted, except in circumstances where there the decision was clearly in error.

It is also better to submit the motion within 30 days of the expedited removal order, which is not a statutory requirement, but in accordance with a regulation generally related to motions with an immigration officer. A favorable review on the merits, if any, is completely within the discretion of the agency.

2. File a Request for Consent to Reapply for Admission Following Expedited Removal Order and an Application for 212(d)(3) Nonimmigrant Waiver to be excused from the (6)(C)(i) inadmissibility finding. This is the more common remedy and official procedure under U.S. immigration law. If granted, the applicant may then receive the U.S. visa or admission to the United States as a nonimmigrant, if he is otherwise eligible for such entry.

The drawback is that a CTR and 212(d)(3) waiver grant eventually expire and may last for only a few months to one year. Therefore, the applicant may need to reapply for this relief if they travel overseas and seek readmission following the expiration of the CTR and waiver grant.

In addition, if the person needs a visa stamp for the purpose of their trip to the United States, he must go through the U.S. Consulate or U.S. Embassy to request the CTR and 212(d)(3) waiver in connection with the visa request. This creates an extra hurdle because the U.S. Consulate or U.S. Embassy must first recommend the requested relief for it to be forwarded to the U.S. Customs & Border Protection, Admissibility Review Office (ARO) for final review and adjudication. If there is no recommendation, there is no review by CBP-ARO on the merits of the applications.

Canadian citizens may file for the Consent to Reapply for Admission (by a Form I-212 application) and 212(d)(3) waiver (by a Form I-192 application) directly with the CBP-ARO when they do not need a visa stamp in their passport for the purpose of their U.S. entry. But in situations where they must have a valid visa for U.S. entry, must request the waiver through consular processing. They include:

  • Treaty traders and investors (E Visa).
  • Foreign citizen fiancé(e) (K-1 Visa), and the fiancé(e)’s children (K-2 Visa).
  • A U.S. citizen’s foreign citizen spouse traveling to reside in the U.S. while awaiting final completion of the process of immigration (K-3 Visa), and the spouse’s children (K-4 Visa).
  • Spouses of lawful permanent residents (V-1 Visas), and the spouse’s children who are traveling to reside in the U.S. while awaiting final completion of the process of immigration (V-2 Visas).
  • Non-immigrants traveling to the United States for work (Non-Immigrant Visas), including:
    • Canadian government officials (A Visas), if entering the U.S. for temporary or permanent assignment.
    • Officials and employees of international organizations (G Visas), if entering the U.S. for temporary or permanent assignment; and
    • NATO officials, representatives, and employees, only if they are being assigned to the U.S. (as opposed to an official trip).

Motion to Reconsider with CBP Results in Favorable Decision Within 5 Months

As a Canadian citizen, my client could have applied directly with CBP-ARO for the Consent to Reapply for Admission and 212(d)(3) waiver to seek re-entry in H-1B status or B1/B2 visitor status. But he opted for the Motion to Reconsider because the evidence showed the Expedited Removal Order and INA 212(a)(6)(C)(i) findings were made in plain error.  Such harsh penalties were unnecessary, particularly when he clarified his legitimate reasons for requesting H-1B admission during secondary inspection at the U.S port of entry.

The normal processing time for a Motion to Vacate Expedited Removal Order with CBP is at least 6 months and, in some cases, may take 1 year or more. Because such motions are not the common or official procedure under statutory law, no Acknowledgement Notice or Receipt Notice is provided by CBP. A review by CBP is completely within their discretion.

While processing times are similar for Consent to Reapply for Admission and 212(d)(3) waiver applications, status updates may be requested from the U.S. Consulate or U.S. Embassy or, in some cases, from the CBP-ARO. This is also the formal route that U.S. immigration agencies expect applicants to take when they have INA 212(a)(9)(A) and (6)(C) bars.

In this case, the CBP agreed to vacate the Expedited Removal Order and the willful misrepresentation charge, as well as corrected the record with a retroactive grant of withdrawal of his application for admission. This timely and wholly positive outcome is a true success story for Dyan Williams Law PLLC.

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The Legal Immigrant provides general information only from Dyan Williams Law. It is based on U.S. immigration laws, regulations and policies that are subject to change. Do not consider it as legal advice. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in expedited removal, H-1B, immigration fraud, INA 212(a)(6)(C)(i), nonimmigrant visa, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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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

Removal of INA 212(a)(6)(C)(i) Bar + H-4 Visa Grant = A True Success Story

Posted on January 2, 2021 | Comments Off on Removal of INA 212(a)(6)(C)(i) Bar + H-4 Visa Grant = A True Success Story

A U.S. Consulate granted the H-4 spouse visa to our client, after agreeing to remove the INA 212(a)(6)(C)(i) charge against her. This permanent bar was made 10 years earlier, when she applied for an Immigrant Visa sponsored by her prior U.S. citizen spouse.

A 212(d)(3) nonimmigrant waiver is the more common fix, but does not get rid of the bar. In this case, I advised the applicant to file a motion to reconsider and rescind the inadmissibility charge, instead of ask for a 212(d)(3) waiver with the visa. The facts and law did not support the Consulate’s finding that she used fraud or willfully misrepresented material facts to obtain a U.S. immigration benefit.

Problem: INA 212(a)(6)(C)(i) Charge is a Permanent Bar

In the CR1 Immigrant Visa refusal, the U.S. Consulate found that my client had willfully misrepresented a material fact in her prior request for a K-3 nonimmigrant visa. The K-3 allows the spouse of a U.S. citizen to enter the U.S. with temporary status and then apply for a green card through Form I-485 adjustment.

According to the Consulate, she had falsely claimed to be married to the U.S. citizen petitioner when she really was not. It reasoned that her Hindu marriage — at the time she applied for the K-3 visa — was not legally valid because their marital ceremony did not include the statutorily recognized rituals, Saptapadi and/or Agni Pheras.

The couple chose to leave out these rituals for personal reasons. They received a marriage certificate from the government authorities based on the ceremony that was performed. They did not expect the U.S. Consulate to question the validity of the marriage due to the missing ceremonial rituals.

At the K-3 visa interview, the consular officer instructed the applicant to complete a new marital ceremony with all the necessary Hindu marriage rituals. It issued a visa refusal notice stating the petition was invalid and would be returned to USCIS for revocation.

After following the Consulate’s instructions, the U.S. citizen filed a second I-130 petition to restart the process. The beneficiary later applied for the Immigrant Visa with the understanding that the new marriage met the Consulate’s requirements.

Instead of granting the CR1 visa, the U.S. Consulate denied it under INA 212(a)(6)(C)(i). The Consulate found the applicant had lied about her marital status in the K-3 visa request because she did not have a legal marriage to the petitioner at the time. She next filed a Form I-601, Application for Waiver of Inadmissibility with USCIS, as instructed by the Consulate.

A year later, the I-601 waiver request was denied. USCIS found there was insufficient evidence of extreme hardship to the U.S. citizen petitioner if the applicant did not immigrate to the United States. The separation led the marriage to fall apart and end in divorce.

Several years later, the applicant entered into a legal, bona fide marriage to an H-1B visa holder. The couple then contacted me for help in getting the H-4 visa at the U.S. Consulate.

I confirmed that section 212(a)(6)(C)(i) is a lifetime inadmissibility bar. The H-4 visa could be granted only if the U.S. Consulate agreed to remove the bar or the U.S. Customs & Border Protection (CBP), Admissibility Review Office (ARO) issued a 212(d)(3) waiver with the Consulate’s recommendation.

Solution: Motion to Reconsider and Rescind Inadmissibility Bar in H-4 Visa Request

With my guidance, the couple decided to ask the U.S. Consulate to remove the section 212(a)(6)(C)(i) charge and grant the H-4 visa, without requiring the 212(d)(3) waiver.

To support the Motion to Reconsider, I counseled the H-1B spouse and the H-4 applicant on the written testimonies and documentary evidence to present to the U.S. Consulate. I also prepared a legal memorandum explaining why the section 212(a)(6)(C)(i) bar did not apply to this case.

At the visa interview, the applicant was questioned about the prior marriage that led to the inadmissibility bar. To show the consular officer that the bar was made in error, she presented the Motion to Reconsider, including my legal memorandum and her affidavit. The Consulate accepted her documents and placed the case in 221(g) administrative processing.

After receiving my follow-up inquiry, the Consulate scheduled the applicant for a second interview. This was three months after her first interview. She answered more questions on her marriage to the H-1B visa holder. She also submitted more evidence related to the marriage in response to a second 221(g) notice.

Six months after the first interview, the Consulate issued a notice stating the applicant was eligible for a waiver of inadmissibility. I then followed up with the Consulate requesting again they review the Motion to Reconsider and lift the section 212(a)(6)(C)(i) bar.

After several more months of administrative processing and follow-up inquiries, the Consulate issued a notice stating a new waiver was in process because the prior waiver had expired.

At that point, I filed a request with the The Office of the Legal Adviser for Consular Affairs (LegalNet), U.S. Department of State, asking it to counsel the U.S. Consulate to reconsider the inadmissibility charge, instead of require a 212(d)(3) waiver. LegalNet contacted the Consulate and began to investigate my inquiry.

Outcome: Removal of Misrepresentation Bar and H-4 Visa Grant

A year after the applicant had attended her first H-4 visa interview, the U.S. Consulate agreed to remove the section 212(a)(6)(C)(i) bar. LegalNet sent me an email stating the Consulate would contact the applicant with further instructions on her H-4 visa request.

Despite the long wait, my client was happy to have the bar lifted and to receive her H-4 visa without needing a 212(d)(3) waiver. The visa was marked with a “clearance received” annotation. Because her spouse was already in the United States in H-1B status, she was excepted from Presidential Proclamation 10052, which placed COVID-19 travel restrictions on nonimmigrant visa applicants.

With the removal of the 212(a)(6)(C)(i) charge, my client will not a need a 212(d)(3) waiver to extend her H-4 status or to get a new nonimmigrant visa. She also will not require a Form I-601/INA 212(i) waiver to immigrate to the U.S. with her husband, who may apply for permanent residence through his U.S. employer.

The H-4 applicant, her H-1B spouse and I communicated by emails and telephone calls. I had one in-person meeting with the H-1B spouse for the initial consultation. With effective collaboration, we convinced the U.S. Consulate to remove the (6)(C)(i) bar — which was made a decade ago — and grant the H-4 visa. This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@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 your situation. Each case is unique and even cases that seem similar may have different outcomes. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in bona fide marriage, H-1B, immigration fraud, INA 212(a)(6)(C)(i), nonimmigrant visa, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

Posted on July 6, 2020 | Comments Off on Work Permit Fraud May Lead to Visa Revocation, Visa Denial and INA 212(a)(6)(C)(i) Inadmissibility

On June 26, Weiyun “Kelly” Huang, owner of the fictitious companies, Findream LLC and Sinocontech LLC, was sentenced to 37 months in federal prison for conspiracy to commit visa fraud. Her companies provided false employment verification records to foreign nationals seeking F-1 or H-1B visa status.

The U.S. Immigration & Customs Enforcement (ICE) played a key role in the investigation, which created ripple effects on persons who received F-1 or H-1B work authorization by using a job offer letter, payroll records or other employment verification documents from Findream or Sinocontech.

F-1 and H-1B Work Authorization Requires Legitimate Employment

An F-1 visa allows an international student to study in the United States at a university or other academic institution.  F students may engage in practical training during their academic program or after it ends. Curricular Practical Training (CPT) and Optional Practical Training (OPT) are the two types of training that provide work experience related to the field of study.

Eligible students may apply for up to 12 months of OPT employment authorization before completing their academic studies (pre-completion) and/or after completing their academic studies (post-completion). All periods of pre-completion OPT, however, are deducted from the available period of post-completion OPT.

The OPT employment can be part time (at least 20 hours per week on post-completion OPT) or full time; involve multiple short-term employers, contract work, self-employment, or agency work; and be paid or unpaid (as a volunteer or intern, as long as labor laws are not violated). The student must report all employment to their Designated School Official (DSO) to maintain status.

While a job offer is not required to apply for OPT, the student may not have a cumulative total of 90 days of unemployment during the 12-month OPT period. Otherwise, they fall out of status and no longer qualify for a change or extension of status.

Students may apply for an additional 24 months of OPT if they have a degree and are employed in a STEM (Science, Technology, Engineering or Mathematics) field. An additional 60 days of unemployment is allowed during the 24-month extension, which means the student may be unemployed for a total of 150 days (i.e. 90 + 60 days) during the entire OPT, 36-month period. Exceeding 60 days of unemployment during STEM OPT means the student is out of status and is ineligible for a change or extension of status.

For the 24-month STEM OPT extension, the DSO requires the student to have an existing job offer from a U.S. employer and to submit a completed Form I-983 (training plan) that is signed by the student and employer.

Section 3 to Section 6 on the Form I-983 requests information on the company, the agreed-upon practical training schedule and compensation, and the formal training plan, respectively. Unlike regular OPT employment, STEM OPT employment must be paid.

An H-1B visa allows U.S.-based employers to temporarily employ foreign nationals in specialty occupations. Foreign nationals with H-1B status may stay in the U.S. for three years, with the possibility of extending their stay for a total of six years. H-1B status may be extended beyond the six-year limit in certain situations, such as when 365 days or more have passed since the filing of an application for labor certification or immigrant petition (Form I-140) for the beneficiary.

F-1 students with a timely filed H-1B petition and change of status request, and whose F-1 employment authorization will expire before the change of status to H-1B occurs (typically October 1), may be eligible for a cap-gap extension in the United States. In many cases, the OPT employment or STEM OPT employment is what allows the F-1 student to change to H-1B status without departing for visa processing at the U.S. Consulate.

ICE Investigations of Work Permit Fraud Schemes Continue

ICE’s crackdown on F-1 and H-1B visa fraud schemes spell trouble for international students and foreign national workers who use fake job offers to obtain F-1 OPT, F-1 STEM OPT, F-1 CPT, or H-1B status.

ICE may conduct on-site visits to confirm the visa holder is actually working for the employer and performing the appropriate duties. When little-known companies like Findream and Sinocontech show a high number of F-1 OPT and STEM OPT workers, this can prompt further investigation.

In March 2019, the United States filed a criminal complaint against the owner of Findream, with an affidavit from an FBI Special Agent stating it was a company on paper only, with no actual physical presence, and was created for the purpose of providing false verifications of employment to F-1 visa holders seeking to extend their stay in the U.S. via the OPT program.

The indictment stated that Huang advertised Findream as a “startup company in technology services and consulting,” with clients in China and the U.S.  She used a China-based website, “Chinese Looking for Job,” and a China-based WeChat platform, “Job Hunters of North America,” to advertise Findream and Sinocontech to F-1 visa holders in the U.S. seeking employment and H-1B visas.

The companies did not deliver any technology or consulting services, or employ any of the individuals who responded to the ads, the indictment stated. In exchange for a fee, Huang and the companies provided job offer letters and employment verification letters as proof of employment, the charges alleged. Falsified payroll records and tax forms were also said to be provided.

According to the indictment, the fraud scheme allowed at least 2,685 customers to list Findream or Sinocontech as their employer to extend their F-1 status. Subsequently, many F-1 and H-1B visa holders, particularly from China, had their visas revoked or denied or were refused entry to the United States (following travel abroad) because they had listed Findream or Sinocontech to receive work authorization.

These types of ICE investigations are ongoing. Recent reports indicate that F-1 students, most from India, have received notifications from U.S. Consulates that their visas have been revoked because they used job offer letters from Integra Technologies LLC and AZTech Technologies LLC to obtain OPT, STEM OPT and, in some cases, CPT work permits.

Through consultations with applicants, we have learned that F-1 and H-1B visa holders, most from India and China, are being refused admission at the U.S. port of entry if they previously held work authorization by association with suspicious companies, such as Integra Technologies, AZTech Technologies, and Tellon Trading, Inc. Expedited removal orders and lifetime inadmissibility charges of fraud or misrepresentation are being made by CBP for this reason.

Data from ICE shows that Integra Technologies, AZTech Technologies, and Tellon Trading were 2nd, 6th, and 10th respectively, on the list of Top 200 Employers for OPT and STEM OPT Students, which includes well-known companies like Amazon, Intel, Google, Microsoft, Deloitte, Facebook and Apple. (NOTE: At least two other companies, Wireclass and Aandwill LLC, have been linked with Integra and AzTech.)

Fraud or Willful Misrepresentation of Material Fact to Obtain U.S. Immigration Benefits is a Permanent Inadmissibility Ground

Federal agencies including ICE and USCIS have made it a priority to deter and detect immigration fraud and have increased site visits, interviews, and investigations of petitioners who use the F-1 OPT and H-1B visa programs. One reason is to protect the “many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged,” according to the agencies.

Submitting a bogus job offer letter, employment verification letter, payroll records or other documents to maintain or obtain F-1 or H-1B status creates the risk of a visa revocation or visa refusal. It may also lead to the denial of admission and an expedited removal order at the U.S. port of entry.

Whether the F-1 or H-1B visa holder knowingly pays a company for false employment verification is sometimes unclear. The pattern involves the company initiating contact with the beneficiary and requesting payment of a “training fee” at the outset. The job offer or training program might seem real in the beginning. But at some point, it becomes obvious there is no real job.

Persons who claim to have a legitimate job offer to gain an F-1 extension or H-1B status — when there is actually no job — are subject to being found permanently inadmissible. When you present false employment verification records to show you performed job duties and got paid for such duties (in order to receive a visa or lawful status in the United States) you risk being charged with a lifetime inadmissibility ban under INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material facts to gain U.S. immigration benefits).

In unique situations, the person may challenge a section 212(a)(6)(C)(i) bar by filing a formal motion to reconsider with the appropriate agency, such as CBP or the U.S. Consulate. In most cases, the person will need a 212(d)(3) nonimmigrant waiver or Form I-601/INA 212(i) immigrant waiver.

The 212(d)(3) waiver has relatively flexible eligibility standards, which includes addressing the risk of harm to society if the person is admitted to the United States, the magnitude of the U.S. immigration violation that caused the inadmissibility, and the importance of seeking the visa. The Form I-601 waiver has stricter requirements because the person must have a qualifying relative (U.S. citizen or permanent resident spouse or parent) who will suffer extreme hardship if the person is not admitted to the United States.

If you are caught up in or benefited from an F-1 or H-1B visa fraud scheme, consult a qualified U.S. immigration attorney to discuss possible remedies. Ongoing and willful participation in the scheme might seem like a victimless offense, but it carries serious and permanent U.S. immigration consequences.

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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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