Posted onDecember 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).
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.
Posted onOctober 26, 2020|Comments Off on I-601 Fraud Waiver + Immigrant Visa Grant = A True Success Story
After USCIS approved the Form I-601 application we prepared on his behalf, our client received his Immigrant Visa and joined his permanent resident parents in the United States. Prior to getting the waiver, he was refused the visa under INA 212(a)(6)(C)(i), i.e. fraud or willful misrepresentation of material fact to previously enter the U.S. on a B1/B2 visitor visa.
With our guidance, he proved to USCIS that his aging mother and father would face extreme hardships if he did not receive admission to the United States. The Form I-601 approval permitted the issuance of Immigrant Visas to the applicant and his accompanying wife and two minor children.
Problem: Permanent Bar Under INA 212(a)(6)(C)(i)
Section 212(a)(6)(C)(i) of the Immigration & Nationality Act (INA) states that a person who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, admission to the U.S. or any other U.S. immigration benefit is inadmissible. This is a lifetime bar to entering the United States.
In this case, in the early 1990s, our client attended high school while he was on a visitor visa, instead of on the proper F-1 student visa. A U.S. citizen family friend — who later became his legal guardian — encouraged him to begin attending a U.S. high school during his temporary visits. A minor at the time, he would consistently depart the United States before his authorized stay expired and then re-enter to continue his studies.
Two years later, he was denied admission at a U.S. port of entry, upon presenting his valid passport and unexpired visitor visa. He was still under age 18 at that point. The U.S. customs officers thought he spoke English too well to be just a visitor. With further inquiry, they discovered he was attending school and working part-time in the United States during his temporary stays. His visa was cancelled and he went back to Mexico.
A few days later, he returned to the United States by crossing the U.S.-Mexico border on foot without inspection. He did not encounter any border patrol agents or present any false documents or information to re-enter the United States and finish high school.
Following his high school graduation, he departed the United States and established a comfortable life in his home country. He became a family man with a spouse and two children. He developed a solid career in warehouse management and logistics.
About 20 years later, he applied for an Immigrant Visa based on an approved Form I-130 petition his U.S. citizen brother filed on his behalf. At the Immigrant Visa interview, the U.S. consular officer found him inadmissible under INA 212(a)(6)(C)(i) for misrepresenting the main purpose of his visit when he requested admission to the United States in the mid-1990s on his B-2 visitor visa to continue his education.
During the visa interview, he admitted under oath to the consular officer that he had attempted to enter the United States using his visitor visa by stating he was coming to the U.S. for a visit. But he intended to return to school and a part-time job.
Although he did not affirmatively present false information to the U.S. customs officer, his own testimony at the visa interview led the U.S. Consulate to deny him the visa under INA 212(a)(6)(C)(i). He was instructed to file a Form I-601 application for waiver of inadmissibility.
Solution: Form I-601 Waiver Under INA 212(i)
Section 212(i) of the INA provides a waiver of the fraud/misrepresentation bar if the applicant is the spouse, son, or daughter of a U.S. citizen or permanent resident who will suffer extreme hardship if the applicant’s request for admission to the United States is denied.
After agreeing to represent the applicant, I counseled him on the documentary evidence and written testimonies he needed to present to USCIS. These included detailed affidavits from the applicant and his family members, medical records and psychological evaluation reports for the parents, and proof of his U.S. citizen brother’s limited income and multiple responsibilities.
To support the Form I-601 application, I submitted a legal memorandum describing the extreme hardships the permanent resident parents would suffer if the applicant did not receive the Immigrant Visa for admission to the United States. The memo also explained why his U.S. citizen brother needed his help and support to care for their aging parents. Furthermore, it was not a viable option for the parents to relocate to the applicant’s home country due to the lack of health care, high crime rate, and poor living conditions.
Even if the applicant meets all the eligibility requirements, the USCIS officer must also decide whether to grant the waiver as a matter of discretion. Because fraud or willful misrepresentation of material fact to obtain a U.S. immigration benefit is a serious violation, we emphasized the applicant was a minor, at the time, who reasonably relied on the advice of his legal guardian. In addition, his professional qualifications, family responsibilities, lack of a criminal history, and close relationship with his permanent resident parents were positive factors that outweighed the unfavorable ones.
Outcome: Waiver Approval + Immigrant Visa Grant
Consistent with average wait times, USCIS took a year to process and approve the Form I-601 waiver application. Several months later, the applicant was scheduled for a follow-up interview at the U.S. Consulate, which issued the Immigrant Visas to him and his spouse and two children.
He and his accompanying derivative beneficiaries became permanent residents of the United States upon their admission on Immigrant Visas. He finally reunited with his parents and U.S. citizen brother after they had lived in separate countries for 20+ years. 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.
Posted onJune 5, 2020|Comments Off on COVID-19 Update: Certain USCIS Field Offices Plan to Reopen to the Public
As of June 4, some USCIS Field Offices are planning to reopen for in-person services to the public. The Application Support Centers plan to reopen later. The Field Offices and Application Support Centers have been closed to the public since March 18, in response to the COVID-19 pandemic.
The reopening of certain USCIS Field Offices will allow the scheduling and rescheduling of interviews for green cards, naturalization, and other U.S. immigration benefits. Biometrics appointment scheduling and rescheduling will also resume when the Application Support Centers reopen.
USCIS is following the Centers of Disease Control and Prevention’s guidelines to protects its employees and the public. USCIS intends to limit the number of appointments and interviews per day, regularly clean and sanitize its facilities, and restrict the number of persons in waiting rooms.
USCIS’ Health & Safety Guidelines
USCIS provided the following guidelines when visiting their offices.
You may not enter a USCIS facility if you:
Have any symptoms of COVID-19, including cough, fever or difficulty breathing;
Have been in close contact with anyone known or suspected to have COVID-19 in the last 14 days; or
Have been individually directed to self-quarantine or self-isolate by a health care provider or public health official within the last 14 days.
You may not enter the facility more than 15 minutes prior to your appointment (30 minutes for naturalization ceremonies).
You are encouraged to use hand sanitizer provided at entry points.
You must wear facial covering (face mask) that covers both the mouth and nose when entering facilities. If you do not have one, USCIS may provide one or you will be asked to reschedule your appointment.
You should pay close attention to markings and physical barriers in the facility and follow social distancing guidelines.
You may have to answer health screening questions before entering a facility.
You are encouraged to bring your own black or blue ink pens.
Individuals are encouraged to bring their own black or blue ink pens.
USCIS will send you an appointment notice when your interview or biometrics appointment is scheduled or rescheduled. The notice will provide more details for visiting USCIS offices. If you feel sick, you are urged to request a cancellation or rescheduling of your appointment.
While USCIS is readying certain offices to reopen on or after June 4, its employees are continuing to perform mission-critical services that do not involve face-to-face contact with the public. Most likely, the earliest date for reopening of some offices will be in July.
The reopening will not only provide relief to applicants, but may help bring much-needed revenue to USCIS. In Mid-May, the agency announced it will run out of money by the summer because the coronavirus pandemic led to a steep drop in applications and filing fees since March. Unlike most federal agencies, USCIS operates almost entirely on revenue from application fees. It requested $1.2 billion from Congress to help it stay afloat, and proposed a 10% surcharge to application fees in the coming months.
Not every application or petition for a U.S. immigration benefit requires a face-to-face interview with a USCIS officer. The USCIS Service Centers are also continuing to accept applications and petitions and issue Receipt Notices and other correspondences, even while Field Offices remain closed to the public.
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.
Posted onApril 22, 2020|Comments Off on COVID-19 Update: Impact of Executive Order Temporarily Suspending Some U.S. Immigration for 60 Days, As of April 23
For a 60-day period, the Executive Order suspends and limits the entry of persons as intended immigrants (Immigrant Visa applicants) who are:
(a) outside the United States on the effective date;
(b) do not have an immigrant visa that is valid on the effective date; and
(c) do not have an official travel document other than a visa (such as a transportation letter, a boarding foil, or an advance parole document) that is valid on the effective date or any date thereafter that permits a request for admission at a U.S. port of entry.
If you have an Immigrant Visa dated April 23, 2020 or later — and need to land in the United States to become a permanent resident — you will not be admitted into the country during the 60-day period (i.e. up to June 22, 2020). The exception is if you fall into one of the categories that are exempted from the Order.
Who is Exempted from the Executive Order?
The Order does not prevent the entry of lawful permanent residents who already hold green cards for admission to the United States.
The Order also exempts certain intended immigrants, such as:
(1) Physicians, nurses and other health care professionals seeking to perform medical research or other research intended to combat the spread of COVID-19, or to perform work essential to combating, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak – as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designess – plus their accompanying or following to join spouse and unmarried minor children
(2) Immigrant Investors in the EB5 immigrant visa category
(3) Spouses of U.S. citizens
(4) Minor children (under age 21) of U.S. citizens, or prospective adoptees seeking to enter the United States with an IR-4 or IH-4 visa
(5) Persons whose entry would further U.S. law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees, based on a recommendation of the Attorney General or his designee
(6) Members of the U.S. Armed Forces and their spouses and children
(7) Special Immigrant Visas in the SI or SQ classification (i.e. Iraqi and Afghan Translators/Interpreters and their spouses and unmarried minor children)
(8) Persons whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees
What is the Stated Purpose of the Executive Order?
Trump said the Executive Order was necessary to protect American workers in an economy severely affected by the COVID-19 outbreak.
Between March 1 and April 11, more than that 22 million Americans have filed for unemployment as a result of the global pandemic and related restrictions with behavioral shifts, including closures of “non-essential” businesses and “social distancing” (physical distancing).
The Executive Order states, “We must be mindful of the impact of foreign workers on the United States labor market, particularly in an environment of high domestic unemployment and depressed demand for labor. We must also conserve critical State Department resources so that consular officers may continue to provide services to United States citizens abroad.”
The Order adds, “lawful permanent residents, once admitted, are granted ‘open-market’ employment authorization documents, allowing them immediate eligibility to compete for almost any job, in any sector of the economy. There is no way to protect already disadvantaged and unemployed Americans from the threat of competition for scarce jobs from new lawful permanent residents by directing those new residents to particular economic sectors with a demonstrated need not met by the existing labor supply. ”
What is the Impact of the Executive Order?
While the Executive Order temporarily suspends the entry of some persons who seek to enter the U.S. as immigrants, it exempts certain immigrant visa categories. It does not apply to the K-1 fiancee(e) category, which is a quasi-immigrant or nonimmigrant visa. It also does not prevent the filing of I-130 and I-140 petitions or the processing of such immigrant petitions by USCIS.
Furthermore, delays are already occurring due to global travel restrictions as well as cancellations and unavailability of visa interviews at U.S. Embassies and Consulates related to COVID-19.
The Executive Order will have little immediate impact on intended immigrants — unless U.S. Embassies and Consulates were to restart normal operations, such as scheduling visa interviews and issuing visas, within the next 60 days, or the Order is extended even further or indefinitely.
The text of the Order states: “Whenever appropriate, but no later than 50 days from the effective date of this proclamation, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend whether I should continue or modify this proclamation.”
The Order also notes that additional measures may be taken. It reads, “Within 30 days of the effective date of this proclamation, the Secretary of Labor and the Secretary of Homeland Security, in consultation with the Secretary of State, shall review nonimmigrant programs and shall recommend to me other measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.”
If the suspension is extended beyond the 60-day period or widened to include nonimmigrant visa categories, this could slow down the restarting of routine in-person services at U.S. Embassies and Consulates. In the meantime, Trump has issued guidelines for Opening Up America Again to state and local officials when “reopening their economies, getting people back to work, and continuing to protect American lives.”
The situation remains fluid. Whether the Trump Administration will extend the suspension on U.S. immigration or begin a suspension in nonimmigrant visa cases is uncertain at this point.
Persons who are eligible for adjustment to permanent residence (green card) within the United States are not affected by the Executive Order. USCIS is performing mission critical duties that do not involve contact with the public.
For example, it continues to issue receipt notices, requests for evidence, decisions and other notices for petitions and applications. Although USCIS has suspended in-person services through at least May 3, it is still accepting petitions (e.g. I-130 and I-140 petitions) and applications for processing. The scheduling of interviews and biometrics appointments with applicants will restart after normal operations resume.
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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.
Posted onJanuary 17, 2020|Comments Off on U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story
After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.
Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.
The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.
Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.
At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.
Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).
I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.
Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.
It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.
Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.
Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.
After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.
A few weeks later, I filed a Request for Advisory Opinion with LegalNet (U.S.Department of State’s legal adviser for consular affairs). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. LegalNet responded it had followed up on my inquiry and the case was under review.
Several months later, LegalNet sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).
After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.
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 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.
